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 AUGUST 2024
COMMISSION FILE NUMBER 001-40173
Steakholder Foods Ltd.
(Translation of registrant’s name into English)
Steakholder Foods Ltd.
5 David Fikes St., Rehovot 7632805 Israel
+972-73-541-2206
(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 ☐
On August 1, 2024, Steakholder
Foods Ltd. (the “Company”) entered into an At The Market Offering Agreement (the “Offering Agreement”) with H.C.
Wainwright & Co., LLC, as sales agent (“H.C. Wainwright”), pursuant to which the Company may offer and sell, from time
to time through H.C. Wainwright American Depositary Shares, each representing one hundred ordinary shares of the Company, no par value
(the “Ordinary Shares”), having an aggregate offering price of up to $4.0 million (the “ADSs”).
The offer and sale of
the ADSs will be made pursuant to a shelf registration statement on Form F-3 and the related prospectus (File No. 333-264110) filed by
the Company with the Securities and Exchange Commission (the “SEC”) on April 4, 2022, and declared effective by the SEC on
April 13, 2022, as supplemented by a prospectus supplement dated August 1, 2024, filed with the SEC pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the “Securities Act”).
Pursuant to the Offering
Agreement, sales of ADSs may be made in transactions that are deemed to be “at-the-market” offerings as defined in Rule 415
under the Securities Act, including sales made directly on or through The Nasdaq Capital Market, or any other existing trading market
in the Unites States for the Company’s ADSs, sales made to or through a market maker other than on an exchange or otherwise, directly
to H.C. Wainwright as principal, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such
prevailing market prices and/or in any other method permitted by law. H.C. Wainwright will use commercially reasonable efforts consistent
with its normal trading and sales practices and applicable law and regulations to sell the ADSs pursuant to the Offering Agreement from
time to time, based upon instructions from the Company, including any price or size limits or other customary parameters or conditions
the Company may impose.
The offering of ADSs
pursuant to the Offering Agreement will terminate upon the earliest of (a) the sale of all of the ADSs subject to the Offering Agreement,
(b) the termination of the Offering Agreement by H.C. Wainwright or the Company, as permitted therein, and (c) the mutual agreement of
the parties. The Company will pay H.C. Wainwright a fixed commission rate equal to 3.0% of the gross sales price of the ADSs sold
pursuant to the Offering Agreement and has agreed to provide H.C. Wainwright with customary indemnification and contribution rights.
The Company will also
reimburse H.C. Wainwright for certain specified expenses in connection with entering into the Offering Agreement. The Offering Agreement
contains customary representations and warranties and conditions to the sale of the ADSs pursuant thereto.
The foregoing description
of the Offering Agreement is not complete and is qualified in its entirety by reference to the full text of such agreement, a copy of
which is filed herewith as Exhibit 10.1 to this Report on Form 6-K and is incorporated herein by reference. A copy of the opinion of Meitar
Law Offices relating to the offer and sale of the ADSs is attached as Exhibit 5.1 hereto.
This Report on Form 6-K
shall not constitute an offer to sell, or the solicitation of an offer to buy, the ADSs discussed herein, nor shall there be any offer,
solicitation, or sale of securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such state.
This Report on Form
6-K is incorporated by reference into the registration statements on Form F-3 (File Nos. 333-276845 and 333-264110) and on Form S-8 (File
Nos. 333-255419, 333-267045 and 333-271112) of the Company, filed with the Securities and Exchange Commission, to be a part thereof from
the date on which this report is submitted, to the extent not superseded by documents or reports subsequently filed or furnished.
EXHIBIT INDEX
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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Steakholder Foods Ltd. |
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By: |
/s/ Arik Kaufman |
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Name: |
Arik Kaufman |
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Title: |
Chief Executive Officer |
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| Date: August 1, 2024 |
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2
Exhibit 5.1
August 1, 2024
Steakholder Foods Ltd.
5 David Fikes St., P.O. Box 4061
Rehovot, Israel 7638205
Ladies and Gentlemen:
We have acted as Israeli counsel
to Steakholder Foods Ltd., a company organized under the laws of the State of Israel (the “Company”), in connection
with the offer, issuance and sale, from time to time, of up to $4,000,000 American Depositary Shares (“ADSs”), each
representing one hundred (100) ordinary shares of no par value (the “Ordinary Shares”) pursuant to the At The Market
Offering Agreement dated August 1, 2024 (the “Sales Agreement”). The Offering is being effected pursuant to a Registration
Statement on Form F-3 (File No. 333-264110) (the “Registration Statement”), filed by the Company with the Securities
and Exchange Commission (the “Commission”), the base prospectus, dated April 13, 2022, forming a part thereof (the
“Base Prospectus”), (iii) the prospectus supplement, dated August 1, 2024, in the form filed with the Commission on
August 1, 2024 (the “Prospectus Supplement” and together with the Base Prospectus, the “Prospectus”)
(the “Offering”).
This opinion letter is furnished
to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, in connection
with the filing of the Registration Statement.
In connection herewith, we have
examined the originals, or photocopies or copies, certified or otherwise identified to our satisfaction, of: (i) the Registration Statement;
(ii) the Prospectus; (iii) the Sales Agreement; (iv) the articles of association of the Company, as currently in effect (the “Articles”);
(v) resolutions of the board of directors (the “Board”) of the Company which have heretofore been approved and relate
to the Registration Statement, the Prospectus and other actions to be taken in connection with the Offering; and (vi) such other corporate
records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers
of the Company as we have deemed relevant and necessary as a basis for the opinions hereafter set forth. We have also made inquiries of
such officers as we have deemed relevant and necessary as a basis for the opinions hereafter set forth.
In such examination, we have assumed
the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as certified, confirmed as photostatic copies and the authenticity
of the originals of such latter documents. As to all questions of fact material to these opinions that have not been independently established,
we have relied upon certificates or comparable documents of officers and representatives of the Company.
Based upon and subject to the
foregoing, we are of the opinion that, assuming that prior to the issuance and sale of any of ADSs under the Sales Agreement, the price,
number of ADSs and certain other terms of issuance with respect to any specific placement notice delivered under the Sales Agreement will
be authorized and approved by the Board or a pricing committee of the Board in accordance with Israeli law, all corporate proceedings
necessary for the authorization, issuance and delivery of the Ordinary Shares underlying the ADSs shall have been taken upon issuance
pursuant to the terms of the Sales Agreement against payment of the consideration set forth in the Sales Agreement and in accordance with
resolutions of the Board related to the Offering, the Ordinary Shares underlying the ADSs will be validly issued, fully paid and non-assessable
and, are not subject to any preemptive rights, rights of first refusal or other similar rights of any securityholder of the Company pursuant
to the Company’s currently effective Articles, Israeli law or the documents governed by the laws of the State of Israel.
With respect to our opinion as
to the Ordinary Shares underlying the ADSs, we have assumed that, at the time of issuance and sale and to the extent any such issuance
would exceed the maximum share capital of the Company currently authorized, the number of Ordinary Shares that the Company is authorized
to issue shall have been increased in accordance with the Articles such that a sufficient number of Ordinary Shares are authorized and
available for issuance under the Articles.
Members of our firm are admitted
to the Bar in the State of Israel, and we do not express any opinion as to the laws of any other jurisdiction. This opinion is limited
to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated.
We consent to the filing of this
opinion as an exhibit to the Registration Statement (as an exhibit to a Report of Foreign Private Issuer on Form 6-K that is incorporated
by reference in the Registration Statement) and to the reference to our firm appearing under the caption “Legal Matters” in
the Prospectus. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under
Section 7 of the Securities Act, the rules and regulations of the Commission promulgated thereunder or Item 509 of the Commission’s
Regulation S-K under the Securities Act.
This opinion letter is rendered
as of the date hereof and we disclaim any obligation to advise you of facts, circumstances, events or developments that may be brought
to our attention after the date of the Prospectus that may alter, affect or modify the opinions expressed herein.
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Very truly yours, |
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/s/ Meitar
Law Offices |
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Meitar Law Offices |
Exhibit
10.1
AT
THE MARKET OFFERING AGREEMENT
August
1, 2024
H.C.
Wainwright & Co., LLC
430
Park Avenue, 3rd Floor
New
York, New York 10022
Ladies
and Gentlemen:
Steakholder
Foods Ltd., a company incorporated under the laws of the State of Israel (the “Company”), confirms its agreement (this
“Agreement”) with H.C. Wainwright & Co., LLC (the “Manager”) as follows:
1. Definitions.
The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Accountants” shall
have the meaning ascribed to such term in Section 4(m).
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Action”
shall have the meaning ascribed to such term in Section 3(p).
“ADSs”
shall mean the American Depositary Shares, each representing one hundred (100) Ordinary Shares of the Company.
“Affiliate”
shall have the meaning ascribed to such term in Section 3(o).
“Applicable
Time” shall mean, with respect to any ADSs, the time of sale of such ADSs pursuant to this Agreement or any relevant Terms
Agreement.
“Base
Prospectus” shall mean the base prospectus contained in the Registration Statement at the Execution Time.
“BHCA”
shall have the meaning ascribed to such term in Section 3(qq).
“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).
“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).
“Business
Day” shall mean 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, that, for purposes of clarity, 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.
“Code”
shall have the meaning ascribed to such term in Section 3(kk).
“Commission“
shall mean the United States Securities and Exchange Commission.
“Companies
Law” shall have the meaning ascribed to such term in Section 3(b).
“Company
Israeli Counsel” means Meitar | Law Offices, with offices located at 16 Abba Hillel Rd., Ramat Gan 5250608, Israel.
“Company
Share Plans” shall have the meaning ascribed to such term in Section 3(ll).
“Company
U.S. Counsel” means Greenberg Traurig, P.A., with offices located at One Azrieli Center, Round Tower, 30th floor, 132 Menachem
Begin Rd, Tel Aviv 6701101.
“Deposit
Agreement” means the Deposit Agreement dated as of March 16, 2011, 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”
shall mean The Bank of New York Mellon, and any successor as depositary under the Deposit Agreement.
“Depositary’s
Counsel” shall mean Emmet, Marvin & Martin, LLP, with offices located at 120 Broadway, New York, New York 10271.
“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).
“Distribution”
shall have the meaning ascribed to such term in Section 2(b)(ix).
“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective.
“Emerging
Growth Company” shall have the meaning ascribed to such term in Section 3(fff).
“Environmental
Laws” shall have the meaning ascribed to such term in Section 3(s).
“ERISA”
shall have the meaning ascribed to such term in Section 3(kk).
“ERISA
Affiliate” shall have the meaning ascribed to such term in Section 3(kk).
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3(y).
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“FDA”
shall have the meaning ascribed to such term in Section 3(jj).
“FDCA”
shall have the meaning ascribed to such term in Section 3(jj).
“Federal
Reserve” shall have the meaning ascribed to such term in Section 3(qq).
“FINRA”
shall have the meaning ascribed to such term in Section 3(e).
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“GAAP”
shall have the meaning ascribed to such term in Section 3(m).
“GDPR”
shall have the meaning ascribed to such term in Section 3(nn).
“Grant
Date” shall have the meaning ascribed to such term in Section 3(ll).
“Hazardous
Materials” shall have the meaning ascribed to such term in Section 3(s).
“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that are
incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission
after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.
“Indebtedness”
shall have the meaning ascribed to such term in Section 3(ee).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“IT
Systems and Data” shall have the meaning ascribed to such term in Section 3(mm).
“Judgment
Currency” shall have the meaning ascribed to such term in Section 17.
“Liens”
shall have the meaning ascribed to such term in Section 3(a).
“Losses”
shall have the meaning ascribed to such term in Section 7(d).
“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).
“Maximum
Amount” shall have the meaning ascribed to such term in Section 2.
“Money
Laundering Laws” shall have the meaning ascribed to such term in Section 3(rr).
“Net
Proceeds” shall have the meaning ascribed to such term in Section 2(b)(v).
“Ordinary
Shares” shall mean the ordinary shares of the Company, no par value.
“Ordinary
Share Equivalents” shall have the meaning ascribed to such term in Section 4(h).
“PCAOB”
shall have the meaning ascribed to such term in Section 3(hh).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).
“Person”
shall have the meaning ascribed to such term in Section 3(e).
“Personal
Data” shall have the meaning ascribed to such term in Section 3(nn).
“Pharmaceutical
Product” shall have the meaning ascribed to such term in Section 3(jj).
“Placement”
shall have the meaning ascribed to such term in Section 2(c).
“Policies”
shall have the meaning ascribed to such term in Section 3(nn).
“Privacy
Laws” shall have the meaning ascribed to such term in Section 3(nn).
“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).
“Prospectus”
shall mean the Base Prospectus, as supplemented by the most recently filed Prospectus Supplement (if any).
“Prospectus
Supplement” shall mean each prospectus supplement relating to the Ordinary Shares represented by the ADSs prepared and filed
pursuant to Rule 424(b) from time to time.
“Record
Date” shall have the meaning ascribed to such term in Section 2(b)(ix).
“Registration
Statement” shall mean the shelf registration statement (File Number 333-264110) on Form F-3, including exhibits and
financial statements filed with or incorporated by reference into such registration statement and any prospectus supplement relating
to the Ordinary Shares represented by the ADSs that is filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto
becomes effective, shall also mean such registration statement as so amended.
“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).
“Rule 158”,
“Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
“Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433”
refer to such rules under the Act.
“Ruling”
shall have the meaning ascribed to such term in Section 3(ww).
“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).
“Sanctions”
shall have the meaning ascribed to such term in Section 3(oo).
“Share
Options” shall have the meaning ascribed to such term in Section 3(ll).
“SEC
Reports” shall have the meaning ascribed to such term in Section 3(m).
“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).
“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).
“Tax
Incentive Program” shall have the meaning ascribed to such term in Section 3(ww).
“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).
“Time
of Delivery” shall have the meaning ascribed to such term in Section 2(c).
“Trading
Day” means a day on which the Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the ADSs or Ordinary Shares are listed or quoted for trading
on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the
New York Stock Exchange (or any successors to any of the foregoing).
All
references in this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in or
otherwise deemed under the Act to be a part of or included in the Registration Statement or the Prospectus, as the case may be, as of
any specified date; and all references in this Agreement to amendments or supplements to the Registration Statement or the Prospectus
shall be deemed to mean and include, without limitation, the filing of any Incorporated Document to be a part of or included in the Registration
Statement or the Prospectus, as the case may be, as of any specified date.
2. Sale
and Delivery of ADSs. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal, from
time to time during the term of this Agreement and on the terms set forth herein, up to such number of ADSs, that does not exceed
(a) the number or dollar amount of the ADSs or the Ordinary Shares represented by the ADSs registered on the Prospectus Supplement,
pursuant to which the offering is being made, (b) the number of authorized but unissued Ordinary Shares (less the number of Ordinary
Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the
Company’s authorized share capital), or (c) the number or dollar amount of the ADSs or the Ordinary Shares represented by the
ADSs that would cause the Company or the offering of the ADSs to not satisfy the eligibility and transaction requirements for use of
Form F-3, including, if applicable, General Instruction I.B.5 of Registration Statement on Form F-3 (the lesser of (a), (b) and (c),
the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that
compliance with the limitations set forth in this Section 2 on the number and aggregate sales price of ADSs issued and sold under
this Agreement shall be the sole responsibility of the Company and that the Manager shall have no obligation in connection with such
compliance.
(a) Appointment
of Manager as Selling Agent; Terms Agreement. For purposes of selling the ADSs through the Manager, the Company hereby appoints
the Manager as exclusive agent of the Company for the purpose of selling the ADSs pursuant to this Agreement and the Manager agrees
to use its commercially reasonable efforts to sell the ADSs on the terms and subject to the conditions stated herein. The Company
agrees that, whenever it determines to sell the ADSs directly to the Manager as principal, it will enter into a separate agreement
(each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such sale in
accordance with Section 2 of this Agreement.
(b) Agent
Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company
will issue and agrees to sell ADSs from time to time through the Manager, acting as sales agent, and the Manager agrees to use its
commercially reasonable efforts to sell, as sales agent for the Company, on the following terms:
(i)
The ADSs are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Manager on any day that
(A) is a Trading Day, (B) the Company has instructed the Manager by telephone (confirmed promptly by electronic mail) to
make such sales (“Sales Notice”) and (C) the Company has satisfied its obligations under Section 6 of this
Agreement. The Company will designate the maximum amount of the ADSs to be sold by the Manager daily (subject to the limitations set
forth in Section 2(d)) and the minimum price per ADS at which such ADSs may be sold. Subject to the terms and conditions hereof, the
Manager shall use its commercially reasonable efforts to sell on a particular day all of the ADSs designated for the sale by the
Company on such day. The gross sales price of the ADSs sold under this Section 2(b) shall be the market price for the ADSs sold
by the Manager under this Section 2(b) on the Trading Market at the time of sale of such ADSs.
(ii)
The Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the ADSs,
(B) the Manager will incur no liability or obligation to the Company or any other Person if it does not sell the ADSs for any
reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales
practices and applicable law and regulations to sell such ADSs as required under this Agreement, and (C) the Manager shall be
under no obligation to purchase ADSs on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the
Manager and the Company pursuant to a Terms Agreement.
(iii)
The Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable
efforts to sell, any ADS at a price lower than the minimum price therefor designated from time to time by the Company’s Board
of Directors (the “Board”), or a duly authorized committee thereof, or such duly authorized officers of the
Company, and notified to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto by telephone
(confirmed promptly by electronic mail), suspend the offering of the ADSs for any reason and at any time; provided, however,
that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the ADSs
sold hereunder prior to the giving of such notice.
(iv)
The Manager may sell ADSs by any method permitted by law deemed to be an “at the market offering” as defined in
Rule 415 under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading
market for the ADSs or to or through a market maker. The Manager may also sell ADSs in privately negotiated transactions, provided
that the Manager receives the Company’s prior written approval for any sales in privately negotiated transactions and if so
provided in the “Plan of Distribution” section of the Prospectus Supplement or a supplement to the Prospectus Supplement
or a new Prospectus Supplement disclosing the terms of such privately negotiated transaction.
(v)
The compensation to the Manager for sales of the ADSs under this Section 2(b) shall be a placement fee of 3.0% of the gross sales
price of the ADSs sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation shall not
apply when the Manager acts as principal, in which case the Company may sell ADSs to the Manager as principal at a price agreed upon
at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the Broker Fee and
deduction of any transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization in
respect of such sales, shall constitute the net proceeds to the Company for such ADSs (the “Net
Proceeds”).
(vi)
The Manager shall provide written confirmation (which may be by electronic mail) to the Company following the close of trading on
the Trading Market each day in which the ADSs are sold under this Section 2(b) setting forth the number of the ADSs sold on such
day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the
Manager with respect to such sales.
(vii)
Unless otherwise agreed between the Company and the Manager, settlement for sales of the ADSs will occur at 10:00 a.m. (New York
City time) on the first (1st) Trading Day, or any other settlement cycle as may be in effect pursuant to Rule 15c6-1 under the
Exchange Act from time to time) following the date on which such sales are made (each, a “Settlement Date”). On
or before the Trading Day prior to each Settlement Date, the Company will, or will cause its Depositary to, electronically transfer
the ADSs being sold by crediting the Manager’s or its designee’s account (provided that the Manager shall have given the
Company written notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company
(“DTC”) through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be
mutually agreed upon by the parties hereto which ADSs in all cases shall be freely tradable, transferable, registered ADSs in good
deliverable form. On each Settlement Date, the Manager will deliver the related Net Proceeds in same day funds to an account
designated by the Company. The Company agrees that, if the Company defaults in its obligation to deliver duly authorized ADSs on a
Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 7 hereto, the Company will
(i) hold the Manager harmless against any loss, claim, damage, or reasonable, documented expense (including reasonable and
documented legal fees and expenses), as incurred, arising out of or in connection with such default by the Company, and (ii) pay to
the Manager any commission, discount or other compensation to which the Manager would otherwise have been entitled absent such
default.
(viii)
At each Applicable Time, Settlement Date and Representation Date, the Company shall be deemed to have affirmed each representation
and warranty contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary to
relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its
commercially reasonable efforts to sell the ADSs on behalf of the Company shall be subject to the continuing accuracy of the
representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the
continuing satisfaction of the additional conditions specified in Section 6 of this Agreement.
(ix)
If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders
of its securities (including the Ordinary Shares and the 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”
and the record date for the determination of shareholders entitled to receive the Distribution, the “Record
Date”), the Company hereby covenants that, in connection with any sales of ADSs pursuant to a Sales Notice on the Record
Date, the Company shall issue and deliver such ADSs to the Manager on the Record Date and the Record Date shall be the Settlement
Date and the Company shall cover any additional costs of the Manager in connection with the delivery of ADSs on the Record
Date.
(c) Term
Sales. If the Company wishes to sell the ADSs pursuant to this Agreement in a manner other than as set forth in Section 2(b) of
this Agreement (each, a “Placement”), the Company will notify the Manager of the proposed terms of such
Placement. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in
its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will
enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding
on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of
the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms
Agreement, the terms of such Terms Agreement will control. A Terms Agreement may also specify certain provisions relating to the
reoffering of such ADSs by the Manager. The commitment of the Manager to purchase the ADSs pursuant to any Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to
the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the ADSs to be purchased by the Manager
pursuant thereto, the price to be paid to the Company for such ADSs, any provisions relating to rights of, and default by,
underwriters acting together with the Manager in the reoffering of the ADSs, and the time and date (each such time and date being
referred to herein as a “Time of Delivery”) and place of delivery of and payment for such ADSs. Such Terms
Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates
pursuant to Section 6 of this Agreement and any other information or documents required by the Manager.
(d) Maximum
Number of ADSs. Under no circumstances shall the Company cause or request the offer or sale of any ADSs if, after giving effect
to the sale of such ADSs, the aggregate amount of ADSs sold pursuant to this Agreement would exceed the lesser of (A) together with
all sales of ADSs under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the currently
effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the
Board, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Manager in writing. Under
no circumstances shall the Company cause or request the offer or sale of any ADSs pursuant to this Agreement at a price lower than
the minimum price authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized executive
officer, and notified to the Manager in writing. Further, under no circumstances shall the Company cause or permit the aggregate
offering amount of ADSs sold pursuant to this Agreement to exceed the Maximum Amount.
(e) Regulation
M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are
satisfied with respect to the ADSs, the Company shall give the Manager at least one (1) Business Day’s prior notice of its
intent to sell any ADSs in order to allow the Manager time to comply with Regulation M.
3. Representations
and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time and on each such time
that the following representations and warranties are repeated or deemed to be made pursuant to this Agreement, as set forth below,
except as set forth in the Registration Statement, the Prospectus or the Incorporated Documents.
(a) Subsidiaries.
All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company are set forth on
Exhibit 8.1 to the Company’s most recent Annual Report on Form 20-F filed with the Commission. The Company owns, directly or
indirectly, all of the share capital or other equity interests of each Subsidiary free and clear of any “Liens”
(which for purposes of this Agreement shall mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive
right or other restriction), and all of the issued and outstanding share capital and other equity interests of each Subsidiary are
validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase
securities.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and, if applicable under the laws of the jurisdiction in which they are formed, in good standing under the laws of the
jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets
and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation nor in default of any of
the provisions of its respective certificate or articles of incorporation or memorandum and articles of association, bylaws or other
organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be,
could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of
this Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or
otherwise) of the Company and the Subsidiaries, taken as a whole, from that set forth in the Registration Statement, the Base
Prospectus, any Prospectus Supplement, the Prospectus or the Incorporated Documents, or (iii) a material adverse effect on the
Company’s ability to perform in any material respect on a timely basis its obligations under this Agreement (any of (i), (ii)
or (iii), a “Material Adverse Effect”) and no “Proceeding” (which for purposes of this
Agreement shall mean any action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation
or partial proceeding, such as a deposition), whether commenced or threatened) has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. Neither the
Company nor any of its Israeli subsidiaries is currently designated as a “breaching company” (within the meaning of the
Israeli Companies Law, 1999) (the “Companies Law”) by the Registrar of Companies of the State of Israel, nor has
a proceeding been instituted in Israel by the Registrar of Companies of the State of Israel for the dissolution of the Company or
any of its Israeli subsidiaries.
(c) Authorization
and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by
the Company and the consummation by it 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, the Board or the Company’s shareholders in
connection herewith other than in connection with the Required Approvals. This Agreement has been duly executed and delivered 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.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance of the Ordinary Shares and
sale of the ADSs representing such Ordinary Shares and the consummation by it of the transactions contemplated hereby do not and
will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation or memorandum and articles of association, 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 Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination,
amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of,
any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary
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 or
a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the
Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not, individually
or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect.
(e) 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, Israeli or non-U.S. governmental authority or
other “Person” (defined as 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, including the Trading Market) in connection with the execution, delivery and performance by the Company of this Agreement,
other than (i) the filings required by this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the
filing of application(s) to and approval by the Trading Market for the listing of the ADSs for trading thereon in the time and
manner required thereby, and (iv) such filings as are required to be made under applicable U.S. state or non-U.S. securities laws
and the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the laws
of Israel (collectively, the “Required Approvals”).
(f) Issuance
of Ordinary Shares. The Ordinary Shares represented by the ADSs are duly authorized and, when issued and paid for in accordance
with this Agreement, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the
Company. The Company has reserved from its duly authorized share capital the maximum number of Ordinary Shares and ADSs that may be
offered and sold pursuant to this Agreement. The offer and sale by the Company of the Ordinary Shares and the offer and sale of the
ADSs has been registered under the Act and all of the ADSs are freely transferable and tradable by the purchasers thereof without
restriction (other than any restrictions arising solely from an act or omission of such a purchaser). The Ordinary Shares are being
offered and sold pursuant to the Registration Statement and the offer and sale of the Ordinary Shares has been registered by the
Company under the Act and the offer and sale of the ADSs has been registered by the Depositary under the Act. The “Plan of
Distribution” section within the Registration Statement permits the offer and sale of the Ordinary Shares as contemplated
by this Agreement. Upon receipt of the ADSs, the purchasers of such ADSs will have good and marketable title to such ADSs and the
ADSs will be freely tradable on the Trading Market.
(g) Capitalization.
The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any capital shares since its most
recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee share options under the
Company’s share option plans, the issuance of Ordinary Shares to employees pursuant to the Company’s employee share
purchase plan and pursuant to the conversion and/or exercise of Ordinary Share Equivalents outstanding as of the date of the most
recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the transactions contemplated by this Agreement. Except as set forth in the
SEC Reports, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any
Person any right to subscribe for or acquire, any Ordinary Shares or the share capital of any Subsidiary, or contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional Ordinary Shares or
Ordinary Share Equivalents or share capital of any Subsidiary. The issuance and sale of the Ordinary Shares represented by the ADSs
pursuant to this Agreement will not obligate the Company or any Subsidiary to issue Ordinary Shares or other securities to any
Person. There are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts the
exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company or any
Subsidiary. Except as set forth in the SEC Reports, there are no outstanding securities or instruments of the Company or any
Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary.
The Company does not have any share appreciation rights or “phantom stock” plans or agreements or any similar plan or
agreement. All of the outstanding Ordinary Shares of the Company are duly authorized, validly issued, fully paid and nonassessable,
have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in
violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization
of any shareholder, the Board or others is required for the issuance and sale of the Ordinary Shares represented by the ADSs as
contemplated hereby. There are no shareholders agreements, voting agreements or other similar agreements with respect to the
Company’s share capital to which the Company is a party or, to the knowledge of the Company, between or among any of the
Company’s shareholders.
(h) Registration
Statement. The Company meets the requirements for use of Form F-3 under the Act and has prepared and filed with the
Commission the Registration Statement, including the Base Prospectus, for registration under the Act of the offering and sale of the
Ordinary Shares. Such Registration Statement is effective and available for the offer and sale of the Ordinary Shares as of the date
hereof. As filed, the Base Prospectus contains in all material respects all information required by the Act and the rules
thereunder, and, except to the extent the Manager shall agree in writing to a modification, shall be in all substantive respects in
the form furnished to the Manager prior to the Execution Time or prior to any such time this representation is repeated or deemed to
be made. The Registration Statement, at the Execution Time, each such time this representation is repeated or deemed to be made, and
at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with
Rule 172, 173 or any similar rule) in connection with any offer or sale of the ADSs, meets the requirements set forth in
Rule 415(a)(1)(x). The initial Effective Date of the Registration Statement was not earlier than the date three years before
the Execution Time. The Company meets the transaction requirements as set forth in General Instruction I.B.1 of Form F-3 or, if
applicable, as set forth in General Instruction I.B.5 of Form F-3 with respect to the aggregate market value of securities being
sold pursuant to this offering and during the twelve (12) months prior to this offering.
(i) Accuracy
of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules thereunder, and none of the Incorporated Documents, when they were
filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were made not misleading; and any further documents so filed
and incorporated by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus, when
such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the
rules thereunder, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(j) Ineligible
Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the ADSs and (ii) as of the Execution Time
and on each such time this representation is repeated or deemed to be made (with such date being used as the determination date for
purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without
taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(k) Free
Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus does
not include any information the substance of which conflicts with the information contained in the Registration Statement, including
any Incorporated Documents and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; and
each Issuer Free Writing Prospectus does not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The
foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by the Manager specifically for use therein. Any Issuer Free Writing Prospectus
that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the
requirements of the Act and the rules thereunder. Each Issuer Free Writing Prospectus that the Company has filed, or is required to
file, pursuant to Rule 433(d) or that was prepared by or behalf of or used by the Company complies or will comply in all material
respects with the requirements of the Act and the rules thereunder. The Company will not, without the prior consent of the Manager,
prepare, use or refer to, any Issuer Free Writing Prospectuses.
(l) Proceedings
Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or examination under
Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in
connection with the offering of the ADSs. The Company has not received any notice that the Commission has issued or intends to issue
a stop-order with respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the
effectiveness of the Registration Statement, either temporarily or permanently, or intends or has threatened in writing to do
so.
(m) SEC
Reports. The Company has complied in all material respects with requirements to file all reports, schedules, forms, statements
and other documents required to be filed by the Company under the Act and 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,
together with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC
Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports
prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with
the requirements of the Act and the Exchange Act, as applicable, 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 financial statements of the
Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of filing. The interactive data in eXtensible Business
Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in
all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. No
other financial statements or supporting schedules are required to be included in the Registration Statement, the Base Prospectus,
any Prospectus Supplement or the Prospectus. Such financial statements have been prepared in accordance with United States generally
accepted accounting principles, applied on a consistent basis during the periods involved (“GAAP”), except as may
be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its
consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(n) Statistical
and Market-Related Data. All statistical, demographic and market-related data included in the Registration Statement or the
Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate. To
the extent required, the Company has obtained the written consent for the use of such data from such sources.
(o) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date on which this
representation is being made, (i) there has been no event, occurrence or development that has had or that could reasonably be
expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other
than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B)
liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made
with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any
dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase or
redeem any of its capital shares, (v) the Company has not issued any equity securities to any officer, director or
“Affiliate” (defined as any Person that, directly or indirectly through one or more intermediaries, controls or
is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 144 under the Act),
except pursuant to existing Company share option plans, and (vi) no executive officer of the Company or member of the Board has
resigned from any position with the Company. The Company does not have pending before the Commission any request for confidential
treatment of information. Except for the issuance of the ADSs contemplated by this Agreement, no event, liability, fact,
circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the
Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that
would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed
made that has not been publicly disclosed prior to the time that this representation is made.
(p) Litigation.
Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending
or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state,
county, local, Israeli or other non-U.S.) (collectively, an “Action”). None of the Actions set forth in the SEC
Reports, (i) adversely affects or challenges the legality, validity or enforceability of this Agreement or the ADSs or (ii) could,
if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company
nor any Subsidiary, nor, to the knowledge of the Company, any director or officer thereof, is or has been the subject of any Action
involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There
has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission
involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or
other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act
or the Act.
(q) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the
Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its
Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such
Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and
its Subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company, no executive
officer of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment
contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or
agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does
not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and
its Subsidiaries are in compliance with all applicable U.S. federal, state, local, Israeli and other non-U.S. laws and regulations
relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to
be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(r) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the
Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan
or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court,
arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any
governmental authority, including without limitation all foreign, federal, state, local, Israeli and other non-U.S. laws relating to
taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except
in each case of (i), (ii), and (iii) as could not have or reasonably be expected to result in a Material Adverse Effect.
(s) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local, Israeli and other non-U.S. laws
relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land
surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into
the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder
(“Environmental Laws”); (ii) have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of
any such permit, license or approval where in each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected
to have, individually or in the aggregate, a Material Adverse Effect.
(t) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate
federal, state, local, Israeli or other non-U.S. governmental or regulatory authorities necessary to conduct their respective
businesses as described in the SEC Reports, except where the failure to possess such permits could not reasonably be expected to
result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received
any notice of proceedings relating to the revocation or modification of any Material Permit. The Company has not engaged in any form
of solicitation, advertising or other action constituting an offer or a sale under the Israeli Securities Law, 5728-1968 and the
regulations promulgated thereunder in connection with the transactions contemplated hereby, which would require the Company to
publish a prospectus in the State of Israel under the laws of the State of Israel.
(u) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and
good and marketable title in all personal property owned by them that is material to the business of the Company and the
Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and
(ii) Liens for the payment of federal, state, Israeli, non-U.S. or other taxes, for which appropriate reserves have been made
therefor in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and
facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with
which the Company and the Subsidiaries are in material compliance.
(v) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and
similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and
which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of,
the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned,
within two (2) years from the date of this Agreement except as would not be reasonably expected to have a Material Adverse Effect.
Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the
SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe
upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the
knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another
Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to
protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has no knowledge of any
facts that would preclude it from having valid license rights or clear title to the Intellectual Property rights. The Company has no
knowledge that it lacks or will be unable to obtain any rights or licenses to use all Intellectual Property Rights that are
necessary to conduct its business.
(w) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but
not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe that it
will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business without a significant increase in cost.
(x) Affiliate
Transactions. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary and, to
the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with
the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or
other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, shareholder, member or partner, in each case in excess of $120,000 other than for (i)
payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and
(iii) other employee benefits, including share option agreements under any share option plan of the Company.
(y) Sarbanes
Oxley Compliance. The Company and the Subsidiaries are in compliance in all material respects with any and all applicable
requirements of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable
rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof. The Company and the
Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are
executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is
permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers
have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the
period covered by the most recently filed Form 20-F under the Exchange Act (such date, the “Evaluation Date”),
and the disclosure controls and procedures are effective in all material respects to perform the functions for which they were
established. The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the
certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the
Evaluation Date. Since the Evaluation Date, to the Company’s knowledge, there have been no significant deficiencies or
material weaknesses in the Company’s internal control over financial reporting (whether or not remediated) and no change in
the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting. Since the Evaluation Date, there have been no changes in the
internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that
have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company
and its Subsidiaries.
(z) Certain
Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions are or will be payable
by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or
other Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with respect to
any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that
may be due in connection with the transactions contemplated by this Agreement.
(aa) No
Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements
with any agent or any other representative in respect of at the market offerings of the ADSs.
(bb) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the ADSs, will not be or
be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The
Company shall conduct its business in a manner so that it will not become an “investment company” subject to
registration under the Investment Company Act of 1940, as amended.
(cc) Listing
and Maintenance Requirements. The ADSs are listed on the Trading Market and the sale of the ADSs as contemplated by this
Agreement does not contravene the rules and regulations of the Trading Market. The ADSs are registered pursuant to Section 12(b) or
12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect
of, terminating the registration of the ADSs under the Exchange Act nor has the Company received any notification that the
Commission is contemplating terminating such registration. Except as set forth in the SEC Reports, the Company has not, in the 12
months preceding the date hereof, received notice from any Trading Market on which the ADSs and/or Ordinary Shares are or have been
listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading
Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with
all such listing and maintenance requirements. The ADSs are currently eligible for electronic transfer through DTC or another
established clearing corporation and the Company is current in payment of the fees to DTC (or such other established clearing
corporation) in connection with such electronic transfer.
(dd) Application
of Takeover Protections. The Company and the Board have taken all necessary action, if any, in order to render inapplicable any
control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation or memorandum and articles of association (or similar
charter documents) or the laws of its jurisdiction of incorporation that is or could become applicable to the ADSs.
(ee) Solvency.
Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable value of the
Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts
and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute
unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs
taking into account the particular capital requirements of the business conducted by the Company, consolidated and projected capital
requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the
Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be
sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The Company does not
intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be
payable on or in respect of its debt) within one year from the date hereof. The Company has no knowledge of any facts or
circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization
laws of any jurisdiction within one year from the date hereof. The SEC Reports set forth as of the date hereof all outstanding
secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For
the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in
excess of $100,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements
and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the
Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in
excess of $100,000 due under leases required to be capitalized in accordance with GAAP. Except for matters that would not,
individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, neither the Company nor any
Subsidiary is in default with respect to any Indebtedness.
(ff) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state, local,
Israeli and other non-U.S. income and franchise tax returns, reports and declarations required by any jurisdiction to which it is
subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to
be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment
of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company
or of any Subsidiary know of no basis for any such claim.
(gg) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or
other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or
campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by
any person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material
respect any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the
OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence
under the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or any other applicable anti-corruption law,
including, without limitation, Section 291A of the Israel Penal Law 5737-1977 and the rules and regulations thereunder.
(hh) Accountants.
The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief of the Company, such accounting
firm (i) is a registered public accounting firm as required by the Exchange Act and the rules of the Public Company Accounting
Oversight Board (“PCAOB”), (ii) has expressed its opinion with respect to the financial statements included in
the Company’s Annual Report for the fiscal year ended December 31, 2023, (iii) is in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X under the Act and (iv) a registered
public accounting firm as defined by PCAOB whose registration has not been suspended or revoked and who has not requested such
registration to be withdrawn.
(ii) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or
indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the ADSs or Ordinary Shares, (ii) sold, bid for, purchased, or, paid any
compensation for soliciting purchases of, any of the ADSs or Ordinary Shares, or (iii) paid or agreed to pay to any Person any
compensation for soliciting another to purchase any other securities of the Company, other than, in the case of clauses (ii) and
(iii), compensation paid to the Manager in connection with the ADSs.
(jj) FDA.
As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under the Federal
Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged,
labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a
“Pharmaceutical Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested,
distributed, sold and/or marketed by the Company in compliance with all applicable requirements under FDCA and similar laws, rules
and regulations relating to registration, investigational use, premarket clearance, licensure, or application approval, good
manufacturing practices, good laboratory practices, good clinical practices, product listing, quotas, labeling, advertising, record
keeping and filing of reports, except where the failure to be in compliance would not have a Material Adverse Effect. There is no
pending, completed or, to the Company’s knowledge, threatened, action (including any lawsuit, arbitration, or legal or
administrative or regulatory proceeding, charge, complaint, or investigation) against the Company or any of its Subsidiaries, and
none of the Company or any of its Subsidiaries has received any notice, warning letter or other communication from the FDA or any
other governmental entity, which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the
distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical
Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of
advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical hold on any clinical
investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company or any of its
Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any of its
Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its Subsidiaries,
and which, either individually or in the aggregate, would have a Material Adverse Effect. The properties, business and operations of
the Company have been and are being conducted in all material respects in accordance with all applicable laws, rules and regulations
of the FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the
United States of any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern as
to approving or clearing for marketing any product being developed or proposed to be developed by the Company.
(kk) ERISA
Compliance. Except as otherwise disclosed in the Registration Statement and the Prospectus, the Company and its Subsidiaries and
any “employee benefit plan” (as defined under the Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively, “ERISA”)) established or maintained by the
Company, its Subsidiaries or their “ERISA Affiliates” (as defined below) are in compliance in all material respects with
ERISA. “ERISA Affiliate” means, with respect to the Company or any of its Subsidiaries, any member of any group
of organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and the
regulations and published interpretations thereunder (the “Code”) of which the Company or such Subsidiary is a
member. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect to
any “employee benefit plan” established or maintained by the Company, its Subsidiaries or any of their ERISA Affiliates.
No “employee benefit plan” established or maintained by the Company, its Subsidiaries or any of their ERISA Affiliates,
if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as
defined under ERISA). Neither the Company, its Subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to
incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee
benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan”
established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates that is intended to be qualified under
Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or failure to act, which would cause the
loss of such qualification.
(ll) Share
Option Plans. With respect to the share options (the “Share Options”) granted pursuant to the share-based
compensation plans of the Company and its subsidiaries (the “Company Share Plans”), (i) each Share Option
purported to be issued under Section 102 of the Israeli Tax Ordinance – (New Version) 1961 qualifies for treatment under that
section and for treatment under either the capital gains track or the employment income track, as was indicated with respect to each
such Share Option at the date that such Share Option was granted, except as would not reasonably be expected to result in a Material
Adverse Effect, (ii) each Share Option intended to qualify as an “incentive stock option” under Section 422 of the Code
(as defined below) so qualifies, except as would not reasonably be expected to result in a Material Adverse Effect, (iii) each grant
of a Share Option was duly authorized no later than the date on which the grant of such Share Option was by its terms to be
effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the Board
(or a duly constituted and authorized committee thereof) and any required shareholder approval, and the award agreement governing
such grant (if any) was duly executed and delivered by each party thereto, (iv) each such grant was made in accordance with the
terms of the Company Share Plans and all other applicable laws and regulatory rules or requirements, and (v) each such grant was
properly accounted for in accordance with GAAP in the financial statements (including the related notes) of the Company included in
the Registration Statement and Prospectus.
(mm) Cybersecurity.
(i)(x) To the knowledge of the Company, there has been no security breach or other compromise of or relating to any of the
Company’s or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including
the data of its respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it),
equipment or technology (collectively, “IT Systems and Data”), except as would not, individually or in the
aggregate, have a Material Adverse Effect and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge
of any event or condition that would reasonably be expected to result in, any material security breach or other compromise to its IT
Systems and Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes (including,
but not limited to, the European Union General Data Protection Regulation and the Israeli Privacy Protection Regulations,
Information, Security, 2017) and all applicable judgments, orders, rules and regulations of any court or arbitrator or governmental
or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data
and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would
not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Company and the Subsidiaries have implemented
and maintained commercially reasonable safeguards to maintain and protect its material confidential information and the integrity,
continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries have implemented
backup and disaster recovery technology consistent with industry standards and practices.
(nn) Compliance
with Data Privacy Laws. (i) The Company and the Subsidiaries are, and at all times during the past three years were, in
compliance with all applicable data privacy and security laws and regulations, including, as applicable, the European Union General
Data Protection Regulation (“GDPR”) (EU 2016/679) and Israeli Privacy Protection Regulations, Information,
Security, 2017 (collectively, “Privacy Laws”); (ii) the Company and the Subsidiaries have in place, comply with,
and take appropriate steps reasonably designed to ensure compliance with their policies and procedures relating to data privacy and
security and the collection, storage, use, disclosure, handling and analysis of Personal Data (the “Policies”);
(iii) the Company provides accurate notice of its applicable Policies to its customers, employees, third party vendors and
representatives as required by Privacy Laws; and (iv) applicable Policies provide accurate and sufficient notice of the
Company’s then-current privacy practices relating to its subject matter, and do not contain any material omissions of the
Company’s then-current privacy practices, as required by Privacy Laws. “Personal Data” means (i) a natural
person’s name, street address, telephone number, email address, photograph, social security number, bank information, or
customer or account number; (ii) any information which would qualify as “personally identifying information” under the
Federal Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR; and (iv) any other piece of
information that allows the identification of such natural person, or his or her family, or permits the collection or analysis of
any identifiable data related to an identified person’s health or sexual orientation. (i) None of such disclosures made or
contained in any of the Policies have been inaccurate, misleading, or deceptive in violation of any Privacy Laws and (ii) the
execution, delivery and performance of this Agreement will not result in a breach of any Privacy Laws or Policies. Neither the
Company nor the Subsidiaries, (i) has, to the knowledge of the Company, received written notice of any actual or potential liability
of the Company or the Subsidiaries under, or actual or potential violation by the Company or the Subsidiaries of, any of the Privacy
Laws; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation or other corrective action
pursuant to any regulatory request or demand pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement by
or with any court or arbitrator or governmental or regulatory authority that imposed any obligation or liability under any Privacy
Law.
(oo) Office
of Foreign Assets Control. Neither the Company nor any of its Subsidiaries, nor to the knowledge of the Company, any of the
directors, officers or employees of the Company or its Subsidiaries, is an individual or entity that is, or is owned or controlled
by an individual or entity that is: (i) the subject of any sanctions administered or enforced by the U.S. Department of
Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, His Majesty’s
Treasury, or other relevant sanctions authority, including by virtue of similar laws or rules of the State of Israel (collectively,
the “Sanctions”), nor (ii) located, organized or resident in a country or territory that is the subject of
Sanctions. Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds of the transactions
contemplated hereby, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other
Person: (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time
of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that will result in a violation of
Sanctions by any Person (including any Person participating in the transactions contemplated hereby, whether as underwriter,
advisor, investor or otherwise). For the past five years, neither the Company nor any of its Subsidiaries has knowingly engaged in,
and is not now knowingly engaged in, any dealings or transactions with any Person, or in any country or territory, that at the time
of the dealing or transaction is or was the subject of Sanctions.
(pp) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the
meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Manager’s
request.
(qq) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of
1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or
indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or
more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the
Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any
entity that is subject to the BHCA and to regulation by the Federal Reserve.
(rr) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions where the Company or any of its Subsidiaries conducts business including
the Israel Prohibition on Money Laundering Law, 5760-2000, Israel Prohibition on Money Laundering Order, 5761-2001 and the Israel
Prohibition on Terrorist Financing Law, 5765-2005, any applicable money laundering statutes and applicable rules and regulations
thereunder (collectively, the “Money Laundering Laws”), and no Action or Proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(ss) FINRA
Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers, directors or, to
the knowledge of the Company, any five percent (5%) or greater shareholder of the Company, except as set forth in the Registration
Statement, the Base Prospectus, any Prospectus Supplement or the Prospectus.
(tt) Authorization
of the Deposit Agreement. The Deposit Agreement has been duly authorized, executed and delivered by the Company and constitutes
a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general principles of equity; upon due issuance by the
Depositary of ADSs against the deposit of the Ordinary Shares in respect thereof in accordance with the Deposit Agreement, such ADSs
sold hereunder will be duly and validly issued and the owners and holders thereof will be entitled to the rights specified therein
and in the Deposit Agreement; and the Deposit Agreement and the ADSs conform in all material respects to the descriptions thereof
contained in the Prospectus.
(uu) Forward-Looking
Statements. Each financial or operational projection or other “forward-looking statement” (as defined by Section 27A
of the Act or Section 21E of the Exchange Act) contained in the Registration Statement or the Prospectus (i) was so included by the
Company in good faith and with reasonable basis after due consideration by the Company of the underlying assumptions, estimates and
other applicable facts and circumstances and (ii) as required, is accompanied by meaningful cautionary statements identifying those
factors that could cause actual results to differ materially from those in such forward-looking statement. No such statement was
made that was false or misleading with the knowledge of a director or senior manager of the Company that it was false or
misleading.
(vv) Israeli
Tax Benefits. (i) The Company is in compliance with all conditions and requirements stipulated by the instruments of approval
and tax ruling (the “Ruling”) granted to it with respect to “Benefited Enterprise” (“Tax
Incentive Program”) status of the Company and/or any of its facilities as well as with respect to the other tax benefits
received by the Company as set forth under the caption “Israeli Tax Considerations and Government Programs” in the
Registration Statement and the Prospectus and by Israeli laws and regulations relating to its Tax Incentive Program and the
aforementioned other tax benefits received by the Company; (ii) all information supplied by the Company with respect to applications
relating to its Tax Incentive Program (including in connection with the Ruling) was true, correct and complete when supplied to the
appropriate authorities; and (iii) the Company has not received any notice of any proceeding or investigation relating to revocation
or modification of any of its current or past Tax Incentive Program granted with respect to the Company and/or any of its
facilities, in each case except for any failure to comply, inaccuracy or notice (as appropriate) that would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(ww) No
Immunity. Neither the Company nor any of its Subsidiaries or their properties or assets has immunity under the State of Israel,
U.S. federal or New York state law from any legal action, suit or proceeding, from the giving of any relief in any such legal
action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of the State of Israel, U.S. federal or New York
state court, from service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or from
execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in
any such court with respect to their respective obligations, liabilities or any other matter under or arising out of or in
connection herewith; and, to the extent that the Company or any of its subsidiaries or any of its properties, assets or revenues may
have or may hereafter become entitled to any such right of immunity in any such court in which proceedings arising out of, or
relating to the transactions contemplated by this Agreement, may at any time be commenced, the Company has, pursuant to this
Agreement, waived, and it will waive, or will cause its Subsidiaries to waive, such right to the extent permitted by law.
(xx) Enforcement
of Foreign Judgments. Any final judgment for a fixed or determined sum of money rendered by any U.S. federal or New York state
court located in the State of New York having jurisdiction under its own laws in respect of any suit, action or proceeding against
the Company based upon this Agreement are enforceable against the Company by the courts of the State of Israel, without
reconsideration or reexamination of the merits, subject to the limitations described in the Registration Statement and the
Prospectus under “Enforceability of Civil Liabilities.”
(yy) Valid
Choice of Law. The choice of laws of the State of New York as the governing law of this Agreement is a valid choice of law under
the laws of the State of Israel and would be enforceable by the courts of the State of Israel, subject to the restrictions described
under the caption “Enforceability of Civil Liabilities” in the Registration Statement and the Prospectus. The Company
has the power to submit, and pursuant to Section 16 of this Agreement, has legally, validly, effectively and irrevocably submitted,
to the personal jurisdiction of each New York state and United States federal court sitting in the City of New York and has validly
and irrevocably waived any objection to the laying of venue of any suit, action or proceeding brought in such court.
(zz) Indemnification
and Contribution. The indemnification and contribution provisions set forth in Section 7 hereof do not contravene Israeli law or
public policy.
(aaa) Reserved.
(bbb) Dividends.
Except as disclosed in the Registration Statement and the Prospectus, (i) no approvals are currently required under the laws of the
State of Israel in order for the Company to pay dividends or other distributions declared by the Company to the holders of Shares
assuming the Company has sufficient profits for distribution under the Companies Law, and (ii) under current laws and regulations of
the State of Israel, any amount payable with respect to the Shares upon liquidation of the Company or upon redemption thereof and
dividends and other distributions declared and payable on the share capital of the Company may be paid by the Company in United
States dollars or euros and freely transferred out of the State of Israel, subject to payment of applicable withholding taxes or an
exemption therefrom.
(ccc) Legal
Action. A holder of the ADSs and the Manager are each entitled to sue as plaintiff in the court of the jurisdiction of formation
and domicile of the Company for the enforcement of their respective rights under this Agreement and the ADSs and such access to such
courts will not be subject to any conditions which are not applicable to residents of such jurisdiction or a company incorporated in
such jurisdiction except that plaintiffs not residing in the State of Israel may be required to guarantee payment of a possible
order for payment of costs or damages at the request of the defendant.
(ddd) Foreign
Issuer. The Company is a “foreign private issuer” as defined in Rule 405 under the Securities Act.
(eee) Emerging
Growth Company. The Company has been and is an “emerging growth company,” as defined in Section 2(a) of the
Securities Act (an “Emerging Growth Company”).
4. Agreements.
The Company agrees with the Manager that:
(a) Right
to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery of a
prospectus relating to the ADSs is required (including in circumstances where such requirement may be satisfied pursuant to
Rule 172, 173 or any similar rule) to be delivered under the Act in connection with the offering or the sale of ADSs, the
Company will not file any amendment to the Registration Statement or supplement (including any Prospectus Supplement, but excluding
any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act) to the Base Prospectus unless the
Company has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or
supplement to which the Manager reasonably objects. The Company has properly completed the Prospectus, in a form approved by the
Manager, and filed such Prospectus, as amended at the Execution Time, with the Commission pursuant to the applicable paragraph of
Rule 424(b) by the Execution Time and will cause any supplement to the Prospectus to be properly completed, in a form approved
by the Manager, and will file such supplement with the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed thereby and will provide evidence reasonably satisfactory to the Manager of such timely filing. The
Company will promptly advise the Manager (i) when the Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (ii) when, during any period when the delivery of a prospectus
(whether physically or through compliance with Rule 172, 173 or any similar rule) is required under the Act in connection with
the offering or sale of the ADSs, any amendment to the Registration Statement shall have been filed or become effective (other than
any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act), (iii) of any request by the
Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the ADSs for
sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its commercially
reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use
of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the
withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using its commercially reasonable efforts to have such amendment or new
registration statement declared effective as soon as practicable.
(b) Subsequent
Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs as a result of
which the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then
prevailing not misleading, the Company will (i) notify promptly the Manager so that any use of the Registration Statement or
Prospectus may cease until such are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus
to correct such statement or omission; and (iii) supply any such amendment or supplement to the Manager in such quantities as
the Manager may reasonably request.
(c) Notification
of Subsequent Filings. During any period when the delivery of a prospectus relating to the ADSs is required (including in
circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the
Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or
supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection
with use or delivery of the Prospectus, the Company promptly will (i) notify the Manager of any such event (provided that such
notification to the Manager shall not be required if a Sales Notice has neither been delivered nor is pending at the time of such
event , but such notification shall be required prior to delivery by the Company of any Sales Notice to the Manager to sell ADSs
hereunder), (ii) subject to Section 4(a), prepare and file with the Commission an amendment or supplement or new registration
statement which will correct such statement or omission or effect such compliance, (iii) use its commercially reasonable
efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable
in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus to the Manager in such
quantities as the Manager may reasonably request.
(d) Earnings
Statements. As soon as practicable, the Company will make generally available to its security holders and to the Manager an
earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange
Act shall be deemed to satisfy the requirements of this Section 4(d).
(e) Delivery
of Registration Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel for the Manager,
without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by
the Manager or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to
Rule 172, 173 or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any supplement
thereto as the Manager may reasonably request. The Company will pay the expenses of printing or other production of all documents
relating to the offering.
(f) Qualification
of ADSs. The Company will arrange, if necessary, for the qualification of the ADSs for sale under the laws of such jurisdictions
as the Manager may designate and will maintain such qualifications in effect so long as required for the distribution of the ADSs;
provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering
or sale of the ADSs, in any jurisdiction where it is not now so subject.
(g) Free
Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the Manager, and
the Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the
Company, it has not made and will not make any offer relating to the ADSs that would constitute an Issuer Free Writing Prospectus or
that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433. Any such free writing prospectus consented to by the
Manager or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees
that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (ii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record
keeping.
(h) Subsequent
Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously delivered shall not
apply during such three (3) Business Days) for at least three (3) Business Days prior to any date on which the Company or any Subsidiary
offers, sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any other ADSs,
Ordinary Shares or any securities exercisable, exchangeable or convertible into Ordinary Shares (“Ordinary Share
Equivalents”) (other than the ADSs issuable pursuant to this Agreement), subject to Manager’s right to waive this
obligation, provided that, without compliance with the foregoing obligation, (i) the Company may issue and sell Ordinary Shares
represented by ADSs or Ordinary Share Equivalents pursuant to any employee equity plan, share ownership plan or dividend
reinvestment plan of the Company in effect from time to time, (ii) the Company may issue Ordinary Shares or ADSs issuable upon the
conversion or exercise of Ordinary Share Equivalents outstanding from time to time, and (iii) the Company may issue ADSs, Ordinary
Shares or any Ordinary Share Equivalents to employees, directors, officers, consultants and advisors as compensation for employment
or services in the ordinary course of business.
(i) Market
Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action designed to
or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any
security of the Company to facilitate the sale or resale of the ADSs or otherwise violate any provision of Regulation M under the
Exchange Act.
(j) Notification
of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented from time to time,
advise the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information or fact that
would alter or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6
herein.
(k) Certification
of Accuracy of Disclosure. Upon commencement of the offering of the ADSs under this Agreement (and upon the recommencement of
the offering of the ADSs under this Agreement following the termination of a suspension of sales hereunder lasting more than 30
Trading Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented, other than by means
of Incorporated Documents, (ii) the Company files its Annual Report on Form 20-F under the Exchange Act, (iii) the Company files a
Report of Foreign Private Issuer on Form 6-K containing amended financial information or unaudited interim financial information
(other than information that is furnished and not filed), if the Manager reasonably determines that the information in such Form 6-K
is material, or (iv) the ADSs are delivered to the Manager as principal at the Time of Delivery pursuant to a Terms Agreement (such
commencement or recommencement date and each such date referred to in (i), (ii), (iii) and (iv) above, a “Representation
Date”), unless waived by the Manager, the Company shall furnish or cause to be furnished to the Manager forthwith a
certificate dated and delivered within five (5) Business Days of the Representation Date, in form reasonably satisfactory to the
Manager to the effect that the statements contained in the certificate referred to in Section 6 of this Agreement which were last
furnished to the Manager are true and correct at the Representation Date, as though made at and as of such date (except that such
statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such date) or,
in lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section 6, modified as necessary
to relate to the Registration Statement and the Prospectus as amended and supplemented to the date of delivery of such certificate.
Notwithstanding the foregoing, the requirement to furnish or cause to be furnished a certificate under this Section 4(k) shall be
waived for any Representation Date occurring at a time at which no instruction to the Manager to sell ADSs pursuant to this
Agreement has been delivered by the Company or is pending. Notwithstanding the foregoing, if the Company subsequently decides to
sell ADSs following any Representation Date when the Company relied on such waiver and did not provide the Manager a certificate
pursuant to this Section 4(k), then before the Company instructs the Manager to sell ADSs pursuant to this Agreement, the Company
shall provide the Manager such certificate to the extent required under this Section 4(k) and not previously delivered.
(l) Bring
Down Opinions; Negative Assurance. Withing five (5) Business Days of each Representation Date, unless waived by the Manager, the
Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager (i) a written opinion of
Company U.S. Counsel, (ii) a written opinion of Company Israeli Counsel, and (iii) subject to receipt by Depositary Counsel of
periodic opinions or reliance letters from Company U.S. Counsel and Company Israeli Counsel, including opinions delivered at each
Representation Date, a written opinion of Depositary Counsel, each addressed to the Manager and dated and delivered on within five
(5) Business Days of such Representation Date, in form and substance reasonably satisfactory to the Manager, including a negative
assurance representation of Company U.S. Counsel. The requirement to furnish or cause to be furnished opinions (but not with respect
to a negative assurance representation) under this Section 4(l) shall be waived for any Representation Date other than a
Representation Date on which a material amendment to the Registration Statement or Prospectus is made or the Company files its
Annual Report on Form 20-F or a material amendment thereto under the Exchange Act, unless the Manager reasonably requests such
deliverable required this Section 4(l) in connection with a Representation Date, upon which request such deliverable shall be
deliverable hereunder. Notwithstanding the foregoing, the requirement to furnish or cause to be furnished an opinion or negative
assurance representation under this Section 4(l) shall be waived for any Representation Date occurring at a time at which no
instruction to the Manager to sell ADSs pursuant to this Agreement has been delivered by the Company or is pending. Notwithstanding
the foregoing, if the Company subsequently decides to sell ADSs following any Representation Date when the Company relied on such
waiver and did not provide the Manager an opinion or negative assurance representation pursuant to this Section 4(l), then before
the Company instructs the Manager to sell ADSs pursuant to this Agreement, the Company shall provide the Manager with such opinion
or negative assurance representation to the extent required under this Section 4(l) and not previously delivered.
(m) Auditor
Bring Down “Comfort” Letter. Within five (5) Business Days of each Representation Date, unless waived by the
Manager, the Company shall cause (1) the Company’s auditors (the “Accountants”), or other independent
accountants satisfactory to the Manager forthwith to furnish the Manager a letter, and (2) the Chief Financial Officer of the
Company forthwith to furnish the Manager a certificate, in each case dated and delivered within five (5) Business Days of such
Representation Date, in form satisfactory to the Manager, of the same tenor as the letters and certificate referred to in Section 6
of this Agreement but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date
of such letters and certificate. The requirement to furnish or cause to be furnished a “comfort” letter under this
Section 4(m) shall be waived for any Representation Date other than a Representation Date on which a material amendment to the
Registration Statement or Prospectus is made or the Company files its Annual Report on Form 20-F or a material amendment thereto
under the Exchange Act, unless the Manager reasonably requests the deliverables required by this Section 4(m) in connection with a
Representation Date, upon which request such deliverable shall be deliverable hereunder. Notwithstanding the foregoing, the
requirement to deliver or cause to be delivered one or more letters or certificates under this Section 4(m) shall, at the request of
the Company, be waived for any Representation Date occurring at a time at which no instruction to the Manager to sell ADSs pursuant
to this Agreement has been delivered by the Company or is pending. Notwithstanding the foregoing, if the Company subsequently
decides to sell ADSs following any Representation Date when the Company relied on such waiver and did not provide the Manager with a
letter or certificate pursuant to this Section 4(m), then before the Company instructs the Manager to sell ADSs pursuant to this
Agreement, the Company shall provide the Manager such letter or certificate to the extent required under this Section 4(m) and not
previously delivered.
(n) Due
Diligence Session. Upon commencement of the offering of the ADSs under this Agreement (and upon the recommencement of the
offering of the ADSs under this Agreement following the termination of a suspension of sales hereunder lasting more than thirty (30)
Trading Days), and within five (5) Business Days at each Representation Date, the Company will conduct a due diligence session, in
form and substance, reasonably satisfactory to the Manager, which shall include representatives of management and Accountants. The
Company shall cooperate timely with any reasonable due diligence request from or review conducted by the Manager or its agents from
time to time in connection with the transactions contemplated by this Agreement, including, without limitation, providing
information and available documents and access to appropriate corporate officers and the Company’s agents during regular
business hours, and timely furnishing or causing to be furnished such certificates, letters and opinions from the Company, its
officers and its agents, as the Manager may reasonably request. The Company shall reimburse the Manager for Manager’s
counsel’s fees in each such due diligence update session, up to a maximum of $5,000 and $2,500 per update for which the
Company is obligated to deliver a certification pursuant to Section 4(k)(ii) and Section 4(k)(iii), respectively, for which no
waiver is applicable, plus any incidental expense incurred by the Manager in connection therewith.
(o) Acknowledgment
of Trading. The Company consents to the Manager trading in the ADSs, subject to applicable law, for the Manager’s own
account and for the account of its clients at the same time as sales of the ADSs occur pursuant to this Agreement or pursuant to a
Terms Agreement.
(p) Disclosure
of ADSs Sold. The Company will disclose in its Annual Reports on Form 20-F and on Form 6-K when disclosing interim
financial reports, as applicable, the number of ADSs sold through the Manager under this Agreement, the Net Proceeds to the Company
and the compensation paid by the Company with respect to sales of ADSs pursuant to this Agreement during the relevant period; and,
if required by any subsequent change in Commission policy or request, more frequently by means of a Report of Foreign Private Issuer
on Form 6-K or a further Prospectus Supplement.
(q) Rescission
Right. If to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied as of the
applicable Settlement Date, the Company will offer to any Person who has agreed to purchase ADSs from the Company as the result of
an offer to purchase solicited by the Manager the right to refuse to purchase and pay for such ADSs.
(r) Bring
Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the ADSs hereunder, and each
execution and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager that the
representations and warranties of the Company contained in or made pursuant to this Agreement are true and correct as of the date of
such acceptance or of such Terms Agreement as though made at and as of such date, and an undertaking that such representations and
warranties will be true and correct as of the Settlement Date for the ADSs relating to such acceptance or as of the Time of Delivery
relating to such sale, as the case may be, as though made at and as of such date (except that such representations and warranties
shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such
ADSs).
(s) Reservation
of Ordinary Shares. The Company shall ensure that there is at all times sufficient authorized share capital for issuance of
Ordinary Shares to provide for the issuance, free of any preemptive rights, out of its authorized but unissued Ordinary Shares or
Ordinary Shares held in treasury, of a sufficient number of Ordinary Shares authorized for issuance by the Board to be represented
by the ADSs to be delivered pursuant to the terms of this Agreement. The Company will use its commercially reasonable efforts to
cause the ADSs to be listed for trading on the Trading Market and to maintain such listing.
(t) Obligation
Under Exchange Act. During any period when the delivery of a prospectus relating to the Ordinary Shares represented by the ADSs
is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule)
to be delivered under the Act, the Company will file all documents required to be filed with the Commission pursuant to the Exchange
Act within the time periods required by the Exchange Act and the regulations thereunder.
(u) DTC
Facility. The Company shall cooperate with the Manager and use its reasonable efforts to permit the ADSs to be eligible for
clearance and settlement through the facilities of DTC.
(v) Use
of Proceeds. The Company will apply the Net Proceeds from the sale of the ADSs in the manner set forth in the
Prospectus.
(w) Filing
of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market”
offerings as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, the Company shall file
a Prospectus Supplement describing the terms of such transaction, the amount of ADSs sold, the price thereof, the Manager’s
compensation, and such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the time
required by Rule 424.
(x) Additional
Registration Statement. To the extent that the Registration Statement is not available for the sales of the Ordinary Shares
represented by ADSs as contemplated by this Agreement, the Company shall file a new registration statement with respect to any
additional Ordinary Shares and/or ADSs necessary to complete such sales of the ADSs and, upon filing of such Registration Statement,
shall cause such registration statement to become effective as promptly as practicable. After the effectiveness of any such
registration statement, all references to “Registration Statement” included in this Agreement shall be deemed to
include such new registration statement, including all documents incorporated by reference therein pursuant to Item 6 of Form
F-3, and all references to “Base Prospectus” included in this Agreement shall be deemed to include the final form
of prospectus, including all documents incorporated therein by reference, included in any such registration statement at the time
such registration statement became effective.
(y) Emerging
Growth Company; Foreign Private Issuer. The Company will promptly notify the Manager if the Company ceases to be an Emerging
Growth Company or a Foreign Private Issuer at any time prior to the later of (i) the sale of all ADSs provided for in the Prospectus
and (ii) the termination of this Agreement in accordance with Section 8 herein.
5. Payment
of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under this
Agreement, whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the
preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements
and exhibits thereto), the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, the Prospectus, and each Issuer Free Writing Prospectus, and all amendments
or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the
ADSs; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the ADSs, including any stamp
or transfer taxes in connection with the original issuance and sale of the ADSs; (iv) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the ADSs; (v) the registration of the Ordinary Shares and the ADSs under the Exchange Act, if
applicable, and the listing of the ADSs on the Trading Market; (vi) any registration or qualification of the ADSs for offer and
sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of
counsel for the Manager relating to such registration and qualification); (vii) the transportation and other expenses incurred
by or on behalf of Company representatives in connection with presentations to prospective purchasers of the ADSs; (viii) the
fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for
the Company; (ix) the filing fee under FINRA Rule 5110; (x) the reasonable fees and expenses of the Manager’s counsel, not to
exceed $75,000 (excluding any periodic due diligence fees provided for under Section 4(n)), $50,000 of which shall be paid upon the
Execution Time and the remaining $25,000 shall be paid upon the first Settlement Date; (xi) any fees charged by the Depositary in
connection with the issuance and sale of the ADSs; and (xii) all other costs and expenses incident to the performance by the Company
of its obligations hereunder.
6. Conditions
to the Obligations of the Manager. The obligations of the Manager under this Agreement, any Terms Agreement and any Sales Notice
shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of
the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the
performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) Filing
of Prospectus Supplement. The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission
have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of ADSs; each
Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required hereunder and
under the Act; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been
filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order
suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and, to the
knowledge of the Company, no proceedings for that purpose shall have been instituted or threatened.
(b) Delivery
of Opinions. The Company shall have caused the (i) Company U.S. Counsel to furnish to the Manager its opinion and negative
assurance statement, (ii) Company Israeli Counsel to furnish to the Manager its opinion, and (iii) Depositary Counsel to furnish to
the Manager its opinion, in each case, dated as of such date and addressed to the Manager in form and substance acceptable to the
Manager.
(c) Delivery
of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Manager a certificate of the
Company signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company,
dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the
Prospectus, any Prospectus Supplement and any documents incorporated by reference therein and any supplements or amendments thereto
and this Agreement and that:
(i)
the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect
as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such date;
(ii)
no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and, to
the Company’s knowledge, no proceedings for that purpose have been instituted or threatened; and
(iii)
since the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated
Documents, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the
Prospectus.
(d) Delivery
of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants to have
furnished to the Manager letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form
and substance satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a
review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration
Statement and the Prospectus and provide customary “comfort” as to such review in form and substance satisfactory to the
Manager.
(e) No
Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement, the
Prospectus and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change or
decrease in previously reported results specified in the letter or letters referred to in paragraph (d) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and its Subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the
Incorporated Documents (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the ADSs as contemplated by the Registration Statement (exclusive of any
amendment thereof), the Incorporated Documents and the Prospectus (exclusive of any amendment or supplement thereto).
(f) Deposit
Agreement. The Deposit Agreement shall be in full force and effect, and the Company shall have taken all action necessary to
permit the deposit of the underlying Ordinary Shares with the Depositary and the issuance of the ADSs in accordance with the Deposit
Agreement.
(g) Depositary’s
Counsel Legal Opinion. On or prior to the date on which the Company first delivers a Sales Notice pursuant to this Agreement,
the Company shall have caused Depositary Counsel to furnish to the Manager its opinion addressed to the Manager in form and
substance reasonably satisfactory to the Manager.
(h) Payment
of All Fees. The Company shall have paid the required Commission filing fees relating to the ADSs within the time period
required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Filing Fee Tables”
table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover
page of a prospectus filed pursuant to Rule 424(b).
(i) No
FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and
arrangements under this Agreement.
(j) ADSs
Listed on Trading Market. The ADSs shall have been listed and admitted and authorized for trading on the Trading Market, and
satisfactory evidence of such actions shall have been provided to the Manager.
(k) Other
Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager
such further information, certificates and documents as the Manager may reasonably request.
If
any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance
to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any
time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to
the Company in writing or by telephone and confirmed in writing by electronic mail.
The
documents required to be delivered by this Section 6 shall be delivered to the office of Haynes and Boone, LLP, counsel for the Manager,
at 30 Rockefeller Plaza, 26th Floor, New York, New York 10112, email: rick.werner@haynesboone.com, on each such date as provided
in this Agreement.
7. Indemnification
and Contribution.
(a) Indemnification
by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees and agents of the
Manager and each person who controls the Manager within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the registration of the Ordinary Shares and the ADSs as
originally filed or in any amendment thereof, or in the Base Prospectus, any Prospectus Supplement, the Prospectus, any Issuer Free
Writing Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading
or arise out of or are based upon any Proceeding, commenced or threatened (whether or not the Manager is a target of or party to
such Proceeding) or result from or relate to any breach of any of the representations, warranties, covenants or agreements made by
the Company in this Agreement, and agrees to reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by the Manager specifically for inclusion therein. This
indemnity agreement will be in addition to any liability that the Company may otherwise have.
(b) Indemnification
by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information relating
to the Manager furnished to the Company by the Manager specifically for inclusion in the documents referred to in the foregoing
indemnity; provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker
Fee applicable to the ADSs and paid hereunder. This indemnity agreement will be in addition to any liability which the Manager may
otherwise have.
(c) Indemnification
Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified
party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election
to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall bear the documented and reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or proceeding.
(d) Contribution.
In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or
defending the same) (collectively “Losses”) to which the Company and the Manager may be subject in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Manager on the
other from the offering of the ADSs; provided, however, that in no case shall the Manager be responsible for any
amount in excess of the Broker Fee applicable to the ADSs and paid hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Manager severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Manager
on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the Manager shall be deemed to be equal to the Broker Fee applicable to
the ADSs and paid hereunder as determined by this Agreement. Relative fault shall be determined by reference to, among other things,
whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or the Manager on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and
the Manager agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls the Manager within the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of the Manager shall have the same rights to contribution as the Manager, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each
case to the applicable terms and conditions of this paragraph (d).
8. Termination.
(a)
The Company shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole
discretion at any time upon five (5) Business Days’ prior written notice. Any such termination shall be without liability of
any party to any other party except that (i) with respect to any pending sale, through the Manager for the Company, the
obligations of the Company, including in respect of compensation of the Manager, shall remain in full force and effect
notwithstanding the termination and (ii) the provisions of Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13, 14
and 15 of this Agreement shall remain in full force and effect notwithstanding such termination.
(b)
The Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the ADSs in its sole discretion at any time. Any such termination shall be
without liability of any party to any other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12, the second
sentence of 13, 14 and 15 of this Agreement shall remain in full force and effect notwithstanding such termination.
(c)
This Agreement shall remain in full force and effect until such date that this Agreement is terminated pursuant to
Sections 8(a) or (b) above or the date on which all the ADSs covered by this Agreement have been sold or otherwise by
mutual agreement of the parties, provided that any such termination by mutual agreement shall in all cases be deemed to provide that
Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13, 14 and 15 shall remain in full force and effect.
(d)
Any termination of this Agreement shall be effective on the date specified in such notice of termination, provided that such
termination shall not be effective until the close of business on the date of receipt of such notice by the Manager or the Company,
as the case may be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the ADSs, such
sale of the ADSs shall settle in accordance with the provisions of Section 2(b) of this Agreement.
(e)
In the case of any purchase of ADSs by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to such
Terms Agreement shall be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to the
Company prior to the Time of Delivery relating to such ADSs, if any, and confirmed promptly by electronic mail, if since the time of
execution of the Terms Agreement and prior to such delivery and payment, (i) trading in the ADSs shall have been suspended by
the Commission or the Trading Market or trading in securities generally on the Trading Market shall have been suspended or limited
or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Manager, impractical or inadvisable to proceed with the offering or delivery of the ADSs as
contemplated by the Prospectus (exclusive of any amendment or supplement thereto).
9. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by the Manager or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 7, and will survive delivery of and payment for the ADSs.
10. Notices.
All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered, or e-mailed to the
addresses of the Company and the Manager, respectively, set forth on the signature page hereto.
11. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 7, and no other person will have any right or
obligation hereunder.
12. No
Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the ADSs pursuant to this Agreement is an
arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through which it
may be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with the purchase
and sale of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s engagement of the
Manager in connection with the offering and the process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the
offering (irrespective of whether the Manager has advised or is currently advising the Company on related or other matters). The
Company agrees that it will not claim that the Manager has rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
13. Integration.
This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or oral) between the
Company and the Manager with respect to the subject matter hereof. Notwithstanding anything herein to the contrary, the letter
agreement, dated July 9, 2024, by and between the Company and the Manager shall continue to be effective and the terms therein shall
continue to survive and be enforceable by the Manager in accordance with its terms, provided that, in the event of a conflict
between the terms of the letter agreement and this Agreement, the terms of this Agreement shall prevail.
14. Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed,
in the case of an amendment, by the Company and the Manager. No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such right.
15. Applicable
Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed within the State of New York. Each of the Company and the Manager: (i)
agrees that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in New
York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives
any objection which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to
the exclusive jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding. Each of the Company and the Manager further agrees to accept and
acknowledge service of any and all process which may be served in any such suit, action or proceeding in the New York Supreme Court,
County of New York, or in the United States District Court for the Southern District of New York and agrees that service of process
upon the Company mailed by certified mail to the Company’s address shall be deemed in every respect effective service of
process upon the Company, in any such suit, action or proceeding, and service of process upon the Manager mailed by certified mail
to the Manager’s address shall be deemed in every respect effective service process upon the Manager, in any such suit, action
or proceeding. If either party shall commence an action or proceeding to enforce any provision of this Agreement, then the
prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable attorney’s fees and
other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
16. Submission
to Jurisdiction. The Company hereby submits to the exclusive jurisdiction of the U.S. federal and New York state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. The Company waives any objection which it may now or hereafter have to the laying of venue of any
such suit or proceeding in such courts. The Company agrees that final judgment in any such suit, action or proceeding brought in
such court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which Company is
subject by a suit upon such judgment.
17. Judgment
Currency. The Company agrees to indemnify the Manager, its directors, officers, affiliates and each person, if any, who controls
the Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any loss incurred by
the Manager as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being
expressed and paid in a currency (the “Judgment Currency”) other than U.S. dollars and as a result of any
variation as between (i) the rate of exchange at which the U.S. dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order, and (ii) the rate of exchange at which such indemnified person is able to purchase U.S. dollars
with the amount of the Judgment Currency actually received by the indemnified person. The foregoing indemnity shall constitute a
separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, the relevant currency.
18. Waiver
of Immunity. To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from jurisdiction
of any court of (i) the State of Israel, or any political subdivision thereof, (ii) the United States or the State of New York,
(iii) any jurisdiction in which it owns or leases property or assets or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution, execution, set-off or otherwise) with respect to themselves or their
respective property and assets or this Agreement, the Company hereby irrevocably waives such immunity in respect of its obligations
under this Agreement to the fullest extent permitted by applicable law.
19. Waiver
of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this Agreement, any Terms Agreement or the transactions
contemplated hereby or thereby.
20. Counterparts.
This Agreement and any Terms Agreement may be executed in one or more counterparts, each one of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon one and the same agreement. Counterparts may be delivered via
electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions
Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any
counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all
purposes.
21. Headings.
The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect the construction
hereof.
***************************
If
the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement among the Company and the Manager.
| Very truly yours, |
|
| |
|
| STEAKHOLDER FOODS LTD. |
|
| |
|
| By: |
/s/ Arik Kaufman |
|
| Name: |
Arik Kaufman |
|
| Title: |
Chief Executive Officer |
|
Address
for Notice:
The
foregoing Agreement is hereby confirmed and accepted as of the date first written above.
| H.C. WAINWRIGHT & CO., LLC |
|
| |
|
| By: |
/s/ Edward D. Silvera |
|
| Name: |
Edward D. Silvera |
|
| Title: |
Chief Operating Officer. |
|
Address
for Notice:
430
Park Avenue, 3rd Floor
New York, New York 10022
Attention: Chief Executive Officer
Email: notices@hcwco.com
Form
of Terms Agreement
ANNEX
I
STEAKHOLDER
FOODS LTD.
TERMS
AGREEMENT
Dear
Sirs:
Steakholder Foods Ltd. (the “Company”) proposes, subject to the terms and conditions stated herein and in the At
The Market Offering Agreement, dated __________ (the “At The Market Offering Agreement”), between the Company and
H.C. Wainwright & Co., LLC (“Manager”), to issue and sell to Manager the securities specified in the Schedule I
hereto (the “Purchased ADSs”).
Each of the provisions of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent
of the Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part
of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of
Delivery, except that each representation and warranty in Section 3 of the At The Market Offering Agreement which makes
reference to the Prospectus (as therein defined) shall be deemed to be a representation and warranty as of the date of the At The
Market Offering Agreement in relation to the Prospectus, and also a representation and warranty as of the date of this Terms
Agreement and the Time of Delivery in relation to the Prospectus as amended and supplemented to relate to the Purchased
ADSs.
An
amendment to the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the
case may be, relating to the Purchased ADSs, in the form heretofore delivered to the Manager is now proposed to be filed with the Securities
and Exchange Commission.
Subject
to the terms and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference,
the Company agrees to issue and sell to the Manager and the latter agrees to purchase from the Company the number of Purchased ADSs at
the time and place and at the purchase price set forth in the Schedule I hereto.
If
the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement,
including those provisions of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement
between the Manager and the Company.
| STEAKHOLDER FOODS LTD. |
|
| |
|
| By: |
|
|
| |
Name: |
|
| |
Title: |
|
| |
|
| ACCEPTED as of the date first written above. |
|
| |
|
| H.C. WAINWRIGHT & CO., LLC |
|
| |
|
| By: |
|
|
| |
Name: |
|
| |
Title: |
|
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