Rosetta Genomics Ltd. 3,750,000 Ordinary Shares* Underwriting Agreement
Exhibit
1.1
3,750,000
Ordinary Shares*
___________ ,
2007
▇.▇.
▇▇▇▇▇▇▇▇▇, Towbin LLC
▇▇▇▇▇▇▇▇▇▇▇
& Co. Inc.
As
Representatives of the several Underwriters,
c/o
▇.▇.
▇▇▇▇▇▇▇▇▇, Towbin LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Rosetta
Genomics Ltd., a company organized under the laws of the State of Israel (the
“Company”), proposes to issue and sell to the several underwriters named in
Schedule I hereto (the “Underwriters”), for whom you (the “Representatives”) are
acting as representatives, 3,750,000 ordinary shares, nominal value NIS 0.01
(“Ordinary Shares”) of the Company, (said shares to be issued and sold by the
Company being hereinafter called the “Underwritten Securities”). The Company
also proposes to grant to the Underwriters an option to purchase up to 562,500
additional Ordinary Shares (the “Option Securities”; the Option Securities,
together with the Underwritten Securities, being hereinafter called the
“Securities”). To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the terms Representatives and Underwriters shall
mean
either the singular or plural as the context requires.
The
terms
which follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
*
Plus an
option to purchase from the Company up to 562,500 additional shares to cover
over-allotments.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a
day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
“Disclosure
Package” shall mean (i) the Statutory Prospectus; (ii) the Issuer Free Writing
Prospectuses,
if any,
identified in Schedule II hereto, (iii) any other Free Writing Prospectus that
the parties hereto shall hereafter expressly agree in writing to treat as part
of the Disclosure Package, and (iv) information contained on Schedule III
hereto.
“Commission”
shall mean the Securities and Exchange Commission.
“Effective
Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Registration
Statement became or become effective.
“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.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary
Prospectus” shall mean any preliminary prospectus referred to in paragraph 1(a)
and any preliminary prospectus included in the Registration Statement at the
Effective Date that omits Rule 430A Information.
“Prospectus”
shall mean the prospectus relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time or, if no filing pursuant
to
Rule 424(b) is required, shall mean the form of final prospectus relating to
the
Securities included in the Registration Statement at the Effective Time.
“Registration
Statement” shall mean the registration statement referred to in paragraph 1(a),
including exhibits and financial statements and any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule
424(b) and deemed part of such registration statement pursuant to Rule 430A,
as
amended at the Execution Time and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes effective prior to
the
Closing Date (as hereinafter defined), shall also mean such registration
statement as so amended or
such
Rule 462(b) Registration Statement, as the case may be.
“Rule
158”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 424”, “Rule 430A”, Rule 433 and
“Rule 462(b)” refer to such rules under the Act.
2
“Rule
430A Information” means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement when
it
becomes effective pursuant to Rule 430A.
“Rule
462(b) Registration Statement” shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) relating to the offering
covered by the registration statement referred to in Section 1(a)
hereof.
“Statutory
Prospectus” shall mean the preliminary prospectus relating to the Securities
that is included in the Registration Statement relating to the Securities
immediately prior to the Execution Time.
1.
Representations
and Warranties.
The
Company represents and warrants to, and agrees with, each Underwriter
that:
(a)
The
Company has prepared and filed with the Commission a registration statement
(file number 333-137095) on Form F-1, including a related preliminary
prospectus, for the registration under the Act of the offering and sale of
the
Securities. Such Registration Statement, including any amendments thereto filed
prior to the Execution Time, has become effective. The Company may have filed
one or more amendments thereto, including a related preliminary prospectus,
each
of which has previously been furnished to you. The Company will next file with
the Commission a final prospectus in accordance with Rule 424(b). As filed,
such
final prospectus shall contain all information required by the Act and the
rules
thereunder and, except to the extent the Representatives shall agree in writing
to a modification, shall be in all substantive respects in the form furnished
to
you prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes,
including Rule
430A
Information (beyond that contained in the latest Preliminary Prospectus) as
the
Company has advised you, prior to the Execution Time, will be included or made
therein.
(b)
On
the
Effective Date, the Registration Statement did, and when the Prospectus is
first
filed in accordance with Rule 424(b) and on the Closing Date and on any date
on
which Option Securities are purchased, if such date is not the Closing Date
(a
“settlement date”), the Prospectus (and any supplements thereto) will, comply in
all material respects with the applicable requirements of the Act and the rules
thereunder; on the Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
in
order to make the statements therein not misleading; and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date and any settlement date,
the Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided,
however,
that
the Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, or the Prospectus
(or
any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration Statement
or
the Prospectus (or any supplement thereto), it being understood and agreed
that
the only such information furnished by any Underwriter consists of the
information described as such in Section 8(b) hereof.
3
(c)
The
Disclosure Package, when taken together as a whole, and each electronic roadshow
when taken together as a whole with the Disclosure Package, do 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 preceding sentence does not apply
to
statements in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein; it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in Section 8(b) hereof.
(d)
Each
Issuer Free Writing Prospectus, when taken together as a whole with the
Disclosure Package, 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 preceding 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 any Underwriter through the
Representatives specifically for use therein; it is being understood and agreed
that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8(b)
hereof.
(e)
Each
Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Act on the date of first use, and the
Company has complied with all prospectus delivery and any filing requirements
applicable to such Issuer Free Writing Prospectus pursuant to the Act. The
Company has not made any offer relating to the Securities that would constitute
an Issuer Free Writing Prospectus without the prior written consent of the
Representatives. The Company has retained in accordance with the Act all Issuer
Free Writing Prospectuses that were not required to be filed pursuant to the
Act.
(f)
Each
of
the Company and Rosetta Genomics Inc., a Delaware corporation (the “Subsidiary”)
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized, where such concept is applicable, with all requisite corporate power
and authority to own or lease, as the case may be, and to operate its properties
and conduct its business as described in the Disclosure Package and the
Prospectus, and is duly qualified to do business as a foreign corporation and
is
in good standing, where such concept is applicable, under the laws of each
jurisdiction which requires such qualification, except where failure to so
qualify would not have a material adverse effect on the condition (financial
or
otherwise), prospects, earnings, business or properties of the Company and
its
Subsidiary, taken as a whole. The Company does not own or control, directly
or
indirectly, any corporation, association or other entity other than the
Subsidiary. No proceedings for dissolution or liquidation of the Company or
termination of its existence (by merger or otherwise) have been taken or are
pending, nor have the Board of Directors of the Company or its shareholders
taken any steps to authorize or institute any of the foregoing.
4
(g)
All
the
outstanding shares of capital stock of the Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable, and all outstanding
shares of capital stock of the Subsidiary are owned directly by the Company
free
and clear of any perfected security interest and any
other
security interests, claims, liens or encumbrances.
(h)
The
Company’s authorized equity capitalization is as set forth in the Disclosure
Package and the Prospectus; the outstanding shares of the Company conform in
all
material respects to the description thereof contained in the Disclosure Package
and the Prospectus; the outstanding shares of the Company have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Securities being sold hereunder have been duly and validly authorized, and,
when
issued and delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable, and free and clear of all
liens, encumbrances, preemptive rights and other claims; the Securities are
duly
listed, and admitted and authorized for trading, subject to official notice
of
issuance and evidence of satisfactory distribution on the Nasdaq National
Market; the certificates for the Securities are in valid and sufficient form;
the holders of outstanding shares of the Company are not entitled to preemptive
or other rights to subscribe for the Securities and, except as set forth in
the
Disclosure Package and the Prospectus, no options, warrants or other rights
to
purchase, agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of or ownership
interests in the Company are outstanding. Except as set forth in the Disclosure
Package and the Prospectus, all of the issued shares of the Company were issued
in compliance with Israeli, federal and state securities laws and not in
violation of any preemptive right or other rights to subscribe.
(i)
The
Company has not sold or issued any securities that would be integrated with
the
offering of the Securities contemplated by this Agreement pursuant to the Act
or
the interpretation thereof by the Commission, nor has the Company issued or
offered any Ordinary Shares or securities convertible or exercisable into
Ordinary Shares to any person during the 12 months preceding the Closing Date,
other than (i) as described in the Preliminary Prospectus and the Prospectus,
or
(ii) the issuance of options pursuant to the Company’s stock option plan or the
issuance of Ordinary Shares pursuant to the exercise of such options.
(j)
There
is
no franchise, contract or other document of a character required to be described
in the Registration Statement or Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required (and the Preliminary
Prospectus contains in all material respects the same description of the
foregoing matters contained in the Prospectus); and the statements in the
Preliminary Prospectus and the Prospectus under the headings “Risk Factors─Risks
Related to Development, Clinical Testing and Regulatory Approval of our Product
Candidates,” “Risk Factors─Risks Related to Israeli Law and Our Operations in
Israel,” “Business─Strategic
Alliances and Research and License Collaborations,” “Business─Regulatory
Matters,” “Management─External Directors,” “Management - Internal Auditor,”
“Management─Approval of Specified Related Party Transactions Under Israeli Law,”
“Management─Employment Agreements,” “Management─Exculpation, Insurance and
Indemnification of Directors and Officers,” “Certain Relationships and Related
Party Transactions,” “Description of Share Capital,” “Material U.S. Federal Tax
Considerations for U.S. Holders,” “Israeli Taxation” and “Enforceability of
Civil Liabilities” accurately and fairly summarize in all material respects the
matters therein described.
5
(k)
This
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company enforceable in
accordance with its terms.
(l)
The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Disclosure Package and the Prospectus, will not be an “investment company” as
defined in the Investment Company Act of 1940, as amended.
(m)
No
consent, approval, authorization, filing with or order of any Israeli, federal,
state, local or other foreign court or governmental agency or body is required
in connection with the transactions contemplated herein, except such as have
been obtained under the Act and such as may be required under the blue sky
laws
of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in the
Disclosure Package and the Prospectus. The Company is not required to publish
a
prospectus under the laws of the State of Israel with respect to the offer
and
sale of the Securities.
(n)
Neither
the issue and sale of the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or the Subsidiary
pursuant to (i) the articles of association, charter or by-laws, as applicable,
of the Company or the Subsidiary or (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the Company
or
the Subsidiary is a party or bound or to which its or their property is subject,
or (iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or its Subsidiary of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or its Subsidiary or any of its or their
properties.
(o)
Except
as
set forth in or contemplated in the Disclosure Package and the Prospectus
(exclusive of any supplement thereto), there are no contracts, agreements or
understandings between the Company and any person granting such person the
right
to require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such person
or
to require the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company under the
Act.
Neither the filing of the Registration Statement, nor the offering or sale
of
the Securities as contemplated by this Agreement gives rise to any rights for
or
relating to the registration of any Ordinary Shares or other securities of
the
Company.
6
(p)
The
consolidated financial statements and schedules of the Company and its
Subsidiary included in the Preliminary Prospectus, the Prospectus and the
Registration Statement present fairly in all material respects the financial
condition, results of operations and cash flows of the Company and its
Subsidiary as of the dates and for the periods indicated, comply as to form
with
the applicable accounting requirements of the Act and the rules and regulations
thereunder and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The financial data set forth
under
the caption “Summary─Summary Selected Financial Data,” “Selected Condensed
Financial Data” and “Capitalization” in the Preliminary Prospectus, the
Prospectus and the Registration Statement fairly present, on the basis stated
in
the Preliminary Prospectus, the Prospectus and the Registration Statement,
the
information included therein.
(q)
The
licensing and collaborative agreements to which the Company is a party, as
described in the Preliminary Prospectus and the Prospectus under “Business ─
Strategic Alliances and Research License Collaborations” are in full force and
effect, except where the failure to be in full force and effect would not
reasonably be expected to have a material effect on the condition (financial
or
otherwise), prospects, earnings, business or properties of the Company and
its
Subsidiary, taken as a whole, whether or not arising from transactions in the
ordinary course of business.
(r)
The
statistical, industry-related and market-related data included in the
Preliminary Prospectus, Prospectus and Registration Statement are based on
or
derived from sources that the Company reasonable believes are reliable and
accurate, and such data agree with the sources from which they are derived,
and
the Company has obtained the written consent to the use of such data from such
sources to the extent required.
(s)
No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or its Subsidiary
or
its or their property is pending or, to the Company’s best
knowledge, threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the consummation of
any
of the transactions contemplated hereby or (ii) could reasonably be expected
to
have a material effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its Subsidiary, taken as
a
whole, whether or not arising from transactions in the ordinary course of
business;
(t)
Each
of
the Company and its Subsidiary, owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted; neither
the
Company nor its Subsidiary is in violation of any law, rule or regulation of
any
Israeli, federal, state, local or other foreign governmental or regulatory
authority applicable to it or is not in non-compliance with any term or
condition of, or has failed to obtain and maintain in effect, any license,
certificate, permit or other governmental authorization required for the
ownership or lease of its property or the conduct of its business, which
violation, non-compliance or failure would individually or in the aggregate
have
a material adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its Subsidiary, taken as
a
whole, whether or not arising from transactions in the ordinary course of
business; and the Company has not received notice of any proceedings relating
to
the revocation or material modification of any such license, certificate, permit
or other authorization.
7
(u)
Neither
the Company nor its Subsidiary is in violation or default of (i) any provision
of its articles of association, charter or bylaws, as applicable (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan
agreement or other agreement, obligation, condition, covenant or instrument
to
which it is a party or bound or to which its property is subject, or (iii)
any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or its Subsidiary or any of
its
properties, as applicable,
except
in the case of clauses (ii) and (iii) above, for any such violation or default
which would not, individually or in the aggregate, have a material
adverse
effect on the condition (financial or otherwise), prospects, earnings, business
or properties of the Company
and its
Subsidiary, taken as a whole,
whether
or not arising from transactions in the ordinary
course
of business.
(v)
To
the
Company’s best
knowledge, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & Kasierer, a member of Ernst & Young
Global, who have certified certain financial statements of the Company and
its
consolidated Subsidiary and delivered their report with respect to the audited
consolidated financial statements and schedules included in the Preliminary
Prospectus and the Prospectus, are independent public accountants with respect
to the Company within the meaning of the Act and the applicable published rules
and regulations thereunder.
(w)
Except
as
set forth in or contemplated in the Disclosure Package and the Prospectus and
assuming that none of the Underwriters is not otherwise subject to taxation
in
Israel, there are no transfer taxes or other similar fees or charges under
Israeli or federal laws or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery
of
this Agreement or the issuance by the Company or sale by the Company of the
Securities. The sale and delivery of the Securities by the Underwriters to
subsequent purchasers as contemplated by this Agreement, are not subject to
any
tax imposed by the State of Israel or any political subdivision thereof or
any
stamp or other issuance or transfer tax, duty, capital gain tax or withholding
tax imposed by federal law, the laws of any state, or any political subdivision
thereof, or any taxing authority in any jurisdiction. There are no contracts,
agreements or understandings between the Company or its Subsidiary and any
person that would give rise to a valid claim against the Company, its Subsidiary
or any Underwriter for a brokerage commission, finder’s fee or other like
payment in connection with the offering and sale of the Securities contemplated
by this Agreement.
8
(x)
The
Company has filed all Israeli, federal, state, local and other foreign tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a material
adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its Subsidiary, 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 Prospectus (exclusive of any
supplement thereto)) and has paid all taxes required to be paid by it and any
other assessment, fine or penalty levied against it, to the extent that any
of
the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as described in
or as
would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
its
Subsidiary, 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
Disclosure Package and the Prospectus (exclusive of any supplement
thereto).
(y)
No
labor
dispute with the employees of the Company or of its Subsidiary exists or
is
threatened or imminent that could result in a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties
of the Company and its Subsidiary, 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 Disclosure Package and the Prospectus
(exclusive of any supplement thereto). Without limiting the generality of the
foregoing, the Company and its Subsidiary are in compliance, in all material
respects, with the labor and employment laws and collective bargaining
agreements applicable to its employees in Israel.
(z)
The
Company and its Subsidiary are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; neither the Company
nor its Subsidiary has been refused any insurance coverage sought or applied
for; and neither the Company nor its 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 at a cost that would not have a material
adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its Subsidiary, 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 Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(aa)
The
Subsidiary is not currently prohibited, directly or indirectly, from paying
any
dividends to the Company, from making any other distribution on its capital
stock, from repaying to the Company any loans or advances to the Subsidiary
from
the Company or from transferring any of the Subsidiary’s property or assets to
the Company or any other subsidiary of the Company, except as described in
or
contemplated by the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
9
(bb)
The
Company and its Subsidiary possess all licenses, certificates, permits and
other
authorizations and permits issued by the appropriate Israeli, federal, state
or
other foreign regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor its Subsidiary has received any notice
of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if
the
subject of an unfavorable decision, ruling or finding, would result in a
material adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its Subsidiary, 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 Disclosure Package
and
the Prospectus (exclusive of any supplement thereto).
(cc)
The
Company and its Subsidiary are (i) in compliance with any and all applicable
Israeli, federal, state, local and other foreign laws and regulations relating
to the protection of human health and safety, the environment or hazardous
or
toxic substances or wastes, pollutants or contaminants (“Environmental Laws”),
(ii) have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) have not received notice of any actual or
potential liability under any environmental law, except where such
non-compliance with Environmental Laws, failure to receive required permits,
licenses or other approvals, or liability would not, individually or in the
aggregate, have a material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
its
Subsidiary, 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
Disclosure Package and the Prospectus (exclusive of any supplement thereto).
Except as set forth in the Disclosure Package and the Prospectus, neither the
Company nor its Subsidiary has been named as a “potentially responsible party”
under the Comprehensive Environmental Response, Compensation, and Liability
Act
of 1980, as amended.
(dd)
In
the
ordinary course of its business, the Company periodically reviews the effect
of
Environmental Laws on the business, operations and properties of the Company
and
its Subsidiary, in the course of which it identifies and evaluates associated
costs and liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). On
the
basis of such review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its Subsidiary, 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 Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(ee)
The
Company and its Subsidiary maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed
in
accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company and its Subsidiary’s internal controls over financial
reporting are effective and the Company and its Subsidiary are not aware of
any
material weakness or significant deficiency in their internal controls over
financial reporting.
10
(ff)
The
Company and its Subsidiary maintain “disclosure controls and procedures” (as
such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure
control and procedures are effective.
(gg)
The
Company has not taken, 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 of the price
of any security of the Company to facilitate the sale or resale of the
Securities.
(hh)
For
purposes of this Agreement, “Intellectual Property” means patents, patent
rights, patent applications, licenses, inventions, copyrights, know how
(including trade secrets and other unpatented and/or unpatentable proprietary
or
confidential information, systems or procedures), trade and service marks,
trade
and service ▇▇▇▇ registrations, and trade names; and “Company Intellectual
Property” means Intellectual Property described in the Disclosure Package and
the Prospectus that is necessary for the Company and its Subsidiary to conduct
its business as described in the Disclosure Package and the Prospectus.
To
the
knowledge of the Company, the Company and its Subsidiary own, possess, or have
adequate rights to use the Company Intellectual Property. Except as set forth
in
the Preliminary Prospectus and the Prospectus under the caption “Business ─ Our
Intellectual Property Strategy,” (a) neither the Company nor its Subsidiary has
received any notice or claim from any person alleging that, and neither is
otherwise aware that, the conduct of the business of the Company and its
Subsidiary constitutes or would constitute any infringement or misappropriation
of, or conflict with, any Intellectual Property right of any third party, (b)
to
the knowledge of the Company, no third party possesses or has the right to
obtain rights to the Company Intellectual Property, (c) neither the Company
nor
its Subsidiary is obligated to pay a royalty, grant a license, or provide other
consideration to any third party in connection with the Company Intellectual
Property, (d) there is no pending or threatened action, suit, proceeding or
claim by others challenging the Company's rights in or to any such Intellectual
Property, and the Company is unaware of any facts which would form a reasonable
basis for any such claim; (e) to the knowledge of the Company, there is no
U.S.
patent or published U.S. patent application which contains claims that dominate
or may dominate any Intellectual Property described in the Disclosure Package
and the Prospectus as being owned by or licensed to the Company or that
interferes with the claims of any such Intellectual Property; and (f) there
is
no prior art of which the Company is aware that may render any U.S. patent
application held by the Company unpatentable which has not been disclosed to
the
U.S. Patent and Trademark Office (the “PTO”).
11
The
Company has complied with the PTO’s duty of candor and disclosure, has disclosed
all material facts, printed publications and patent references to the PTO,
and
has made no material misrepresentation in the Company’s patent applications
filed in the United States. The Company has no knowledge of any information
which would preclude the patentability, validity or enforceability of any patent
applications in the Company Intellectual Property. The Company has no knowledge
of any information which would preclude the Company from having clear title
to
the patent applications in the Company Intellectual Property. All assignments
for all patent applications in the Company Intellectual Property have been
properly executed and recorded for each named inventor.
(ii)
The
statements contained in the Preliminary Prospectus and the Prospectus under
the
captions “Risk Factors ─ Risks related to Patents, Licenses and Trade Secrets”
and “Business ─ Our Intellectual Property Strategy,” insofar as such statements
summarize legal matters, agreements, documents, or proceedings discussed
therein, are accurate and fair summaries in all material respects of such legal
matters, agreements, documents or proceedings.
(jj)
There
is
and has been no failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with any
applicable provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations promulgated in connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”).
(kk)
Neither
the Company nor its subsidiary nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such Persons of the Foreign Corrupt Practice
Act
of 1977, as amended and the rules and regulations thereunder (“FCPA”),
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything
of
value to any “foreign official” as such term is defined in the FCPA or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, its Subsidiary
and, to the knowledge of the Company, its affiliates have conducted their
businesses in compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(ll)
The
operations of the Company and its Subsidiary are and have been conducted at
all
times in compliance with the applicable money laundering statutes of all
jurisdictions, the applicable rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administrated and enforced
by any governmental agency and no action, suit or proceeding by and before
any
court or governmental agency, authority or body or any arbitrator involving
the
Company or its Subsidiary with respect to such money laundering laws is pending
or threatened.
12
(mm)
Neither
the Company nor its Subsidiary nor any director, officer, agent, employee or
affiliate of the Company or its Subsidiary is currently subject to any U.S.
sanctions administrated by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”); and the Company will not directly or indirectly
use the proceeds of the offering or lend, contribute otherwise make available
such proceeds to any person or entity for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered
by
OFAC.
(nn)
The
Company was not, for the taxable year ended December 31, 2005 a “passive foreign
investment company” (“PFIC”) within the meaning of Section 1297 of the Internal
Revenue Code of 1986, as amended (the “Code”).
(oo)
Except
as
disclosed in the Registration Statement, the Preliminary Prospectus and the
Prospectus, the Company is in compliance in all material respects with all
conditions and requirements stipulated by the instruments of approval granted
to
it by the Investment Center of the Ministry of Industry, Trade and Labor with
respect to the “Approved Enterprise” status of any of the Company’s facilities
and any other tax benefits to be received by the Company as set forth under
the
caption “Israeli Tax Considerations and Governmental Programs” in the
Preliminary Prospectus and the Prospectus and by Israeli laws and regulations
relating to such “Approved Enterprise” status and the aforementioned other tax
benefits to be received by the Company; all information supplied by the Company
with respect to applications relating to such “Approved Enterprise” status was
true, correct and complete in all material respects when supplied to the
appropriate authorities; and the Company has not received any notice of any
proceeding or investigation relating to revocation or modification of any
“Approved Enterprise” status granted with respect to any of the Company’s
facilities.
(pp)
All
of
the information provided by or behalf of the Company in writing to the
Underwriters or to the Underwriters’ counsel specifically for use by the
Underwriters’ counsel in connection with its COBRADesk filings (and related
disclosure) with the National Association of Securities Dealers, Inc. is true,
complete and correct in all material respects.
(qq)
The
Company is not a “controlled foreign corporation” within the meaning of the
Code.
(rr)
Neither
the Company nor its Subsidiary nor any of its or their properties or assets
has
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid
of
execution or otherwise) under the laws of the State of Israel.
(ss)
Subject
to the conditions and qualifications set forth in the Registration Statement,
the Preliminary Prospectus and the Prospectus, a final and conclusive judgment
against the Company for a definitive sum of money entered by any court in the
United States would be enforced by an Israeli court.
13
(tt)
The
Company qualified in the year ended December 31, 2005 as an “Industrial Company”
within the definition of the Law for the Encouragement of Industry (Taxes),
1969; and absent a change in such law, the Company believes that it will so
qualify in the year ending December 31, 2006.
(uu)
The
Company has validly appointed its Subsidiary as its authorized agent for service
of process pursuant to Section 18 of this Agreement.
Any
certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2.
Purchase
and Sale.
(a)
Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each Underwriter,
and
each Underwriter agrees, severally and not jointly, to purchase from the
Company, at a purchase price of
$
per Ordinary Share, the amount of the Underwritten Securities
set forth opposite such Underwriter’s name in Schedule I hereto.
(b)
Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to 562,500 shares of
Option Securities at the same purchase price per share as the Underwriters
shall
pay for the Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the Underwriters.
Said option may be exercised in whole or in part at any time on or before the
30th day after the date of the Prospectus upon written or telegraphic notice
by
the Representatives to the Company setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the option
and the settlement date. Delivery of certificates for the shares of Option
Securities, and payment therefor, shall be made as provided in Section 3 hereof.
The number of shares of the Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3.
Delivery
and Payment.
Delivery
of and payment for the Underwritten Securities and the Option Securities (if
the
option provided for in Section 2(b) hereof shall have been exercised on or
before the third Business Day prior to the Closing Date) shall be made at 10:00
AM, New York City time,
on
, 2007, or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date
and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the “Closing Date”). Delivery of the
Securities shall be made to the Representatives for the respective accounts
of
the several Underwriters against payment by the several Underwriters through
the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same day funds to an account specified
by
the Company. Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company unless
the
Representatives shall otherwise instruct. Certificates for the Securities shall
be registered in such names and in such denominations as the Representatives
may
request not less than two full Business Days in advance of the Closing
Date.
14
If
the
option provided for in Section 2(b) hereof is exercised after the third Business
Day prior to the Closing Date, the Company will deliver the Option Securities
(at the expense of the Company) to the Representatives on the date specified
by
the Representatives (which shall be within three Business Days after exercise
of
said option), for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable
in
same day funds to an account specified by the Company. Delivery of the Option
Securities shall be made through facilities of the Depository Trust Company
unless the Representatives shall otherwise instruct. Certificates for the
Securities shall be registered in such names and in such denominations as the
Representatives may request not less than two full Business Days in advance
of
the Closing Date.
If
settlement for the Option Securities occurs after the Closing Date, the Company
will deliver to the Representatives on the settlement date for the Option
Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6
hereof.
4.
Offering
by Underwriters.
It is
understood that the several Underwriters propose to offer the Securities for
sale to the public as set forth in the Prospectus. The Representatives agree
that, without the prior written consent of the Company, they will not offer
any
Securities to offerees in Israel, other than to Accredited Investors
(mashki’im
mesuvagim),
as
defined in the Israeli Securities Law, 5728-1968.
5.
Agreements.
The
Company agrees with the several Underwriters that:
(a)
Prior
to
the termination of the offering of the Securities, the Company will not file
any
amendment of the Registration Statement or supplement to the Prospectus or
any
Rule 462(b) Registration Statement unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed amendment
or
supplement to which you reasonably object. The Company will cause the
Prospectus, properly completed, and any supplement thereto to be filed in a
form
approved by the Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely filing. The Company
will promptly advise the Representatives (i) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission, (ii) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement shall
have been filed or become effective, (iii) of any request by the Commission
or
its staff for any amendment of the Registration Statement, or any Rule 462(b)
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 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 Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
15
(b)
If,
at
any time prior to the filing of the Prospectus pursuant to Rule 424(b), any
event occurs as a result of which the Disclosure Package 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 at such time not misleading, the Company will (i) notify promptly
the Representatives so that any use of the Disclosure Package may cease until
it
is amended or supplemented; (ii) amend or supplement the Disclosure Package
to
correct such statement or omission; and (iii) supply any amendment or supplement
to you in such quantities as you may reasonably request.
(c)
If,
at
any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement
may
be satisfied pursuant to Rule 172), 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 at such time not
misleading, or if it shall be necessary to amend the Registration Statement
or
supplement the Prospectus to comply with the Act or the rules thereunder, the
Company promptly will (i) notify the Representatives of any such event, (ii)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will correct
such statement or omission or effect such compliance and (iii) supply any
supplemented Prospectus to you in such quantities as you may reasonably
request.
(d)
As
soon
as practicable, the Company will make generally available to its security
holders and to the Representatives 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.
(e)
The
Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), as many copies
of
each Preliminary Prospectus, the Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto as the Representatives may reasonably
request.
16
(f)
The
Company will arrange, if necessary, for the qualification of the Securities
for
sale under the laws of such jurisdictions as the Representatives may designate,
and will maintain such qualifications in effect so long as required for the
distribution of the Securities; 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 Securities,
in any jurisdiction where it is not now so subject.
(g)
The
Company will not, for a period of 180 days following the Execution Time, without
the prior written consent of ▇.▇. ▇▇▇▇▇▇▇▇▇, Towbin LLC, offer, sell or contract
to sell, pledge, or otherwise dispose of (or enter into any transaction which
is
designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or
any
person in privity with the Company or any affiliate of the Company) directly
or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of (other than a
Registration Statement on Form S-8 relating to the Company’s ▇▇▇▇ ▇▇▇▇▇▇▇ Option
Plan and 2006 Employee Incentive Plan), or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act, any other Ordinary Shares or
any
securities convertible into, or exercisable, or exchangeable for, Ordinary
Shares, or publicly announce an intention to effect any such transaction,
provided,
however,
that
the Company may (A) issue and sell Ordinary Shares and options to purchase
Ordinary Shares pursuant to any employee stock option plan of the Company in
effect at the Execution Time, (B) issue Ordinary Shares issuable upon the
conversion of securities or the exercise of options or warrants outstanding
at
the Execution Time,
and (C)
issue Ordinary Shares or securities convertible into or exchangeable or
exercisable for Ordinary Shares or warrants or other rights to purchase Ordinary
Shares or any other securities of the Company in connection with any strategic
partnership, joint venture or collaboration to which the Company is a party,
or
the acquisition or license of any products or technology by the Company
(individually, a “Collaboration”), provided that the recipient of any such
Ordinary Shares or securities convertible into or exchangeable or exercisable
for Ordinary Shares or warrants or other rights to purchase Ordinary Shares
or
any other securities of the Company issued in connection with a Collaboration
shall execute a letter in substantially the form attached hereto as Exhibit
A,
agreeing to be bound by the terms and restrictions set forth therein for the
remainder of the lock-up period.
If
(i)
the Company issues an earnings release or material news, or a material event
relating to the Company occurs, during the last 17 days of the lock-up period,
or (ii) prior to the expiration of the lock-up period, the Company announces
that it will release earnings results during the 16-day period beginning on
the
last day of the lock-up period, the restrictions imposed by this Section shall
continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event.
17
(h)
The
Company will comply with all applicable securities and other applicable laws,
rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act,
and to use its best efforts to cause the Company’s directors and officers, in
their capacities as such, to comply with such laws, rules and regulations,
including, without limitation, the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act.
(i)
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 of the price
of any security of the Company to facilitate the sale or resale of the
Securities.
(j)
The
Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the Commission
of
the Registration Statement (including financial statements and exhibits
thereto), each Preliminary Prospectus, 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, each Preliminary Prospectus, 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 Securities; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any stamp
or
transfer taxes in connection with the original issuance and sale of the
Securities; (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 Securities;
(v)
the registration of the Securities under the Exchange Act and the listing of
the
Securities on the Nasdaq National Market; (vi) any registration or qualification
of the Securities 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 Underwriters relating to such registration and
qualification); (vii) any filings required to be made with the National
Association of Securities Dealers, Inc. (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such
filings); (viii) the transportation and other expenses incurred by or on behalf
of Company representatives in connection with presentations to prospective
purchasers of the Securities; (ix) the fees and expenses of the Company’s
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company; and (x) all other costs and expenses incident to
the
performance by the Company of its obligations hereunder.
(k)
The
Company agrees that, unless it has obtained or will obtain the prior written
consent of the Representatives, and each Underwriter, severally and not jointly,
agrees with the Company that, unless it has obtained or will obtain, 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 Securities 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; provided that the
prior written consent of the parties hereto shall be deemed to have been given
in respect of the Free Writing Prospectuses included in Schedule II hereto.
Any
such free writing prospectus consented to by the Representatives or the Company
is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company
agrees that (x) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and
(y)
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.
18
(l)
Upon
the request of any holder of Securities, the Company will prepare and provide,
within 60 days after the end of each taxable year of the Company: (i) a
certification stating whether the Company was a PFIC with respect to such
taxable year; (ii) any information that may be necessary for the holder of
Securities to make or maintain a “qualified electing fund” election with respect
to the Company pursuant to Section 1295 of the Code or the Treasury Regulations
promulgated thereunder, including without limitation a “PFIC Annual Information
Statement” within the meaning of, and meeting the requirements of, Treasury
Regulation Section 1.1295-1(g); (iii) any information that may be necessary
for
the holder of Securities to make or maintain a “▇▇▇▇ to market” election with
respect to Securities pursuant to Section 1296 of the Code or the Treasury
Regulations promulgated thereunder; and (iv) any other information reasonably
requested by the holder of Securities to comply with any reporting requirements
set forth in Subtitle A, Subchapter P, Part VI of the Code and any Treasury
Regulations promulgated thereunder. The Company will retain such independent
advisors as necessary to assist with the foregoing and shall bear all expenses
associated with such advisors. Upon the request of any holder of Securities,
the
Company will cooperate in any tax audits, proceedings, or contests related
to
the Company’s classification as a PFIC.
6.
Conditions
to the Obligations of the Underwriters.
The
obligations of the Underwriters to purchase the Underwritten Securities and
the
Option Securities, as the case may be, shall be subject to the accuracy of
the
representations and warranties on the part of the Company contained herein
as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a)
The
Prospectus, and any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b); 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 shall have been issued and no proceedings for that purpose shall
have
been instituted or
threatened.
(b)
The
Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇ & Co., Israeli counsel
for the Company, to have furnished to the Representatives their opinion, dated
the Closing Date and addressed to the Representatives, in
form
and substance satisfactory in all respects to the Representatives.
19
(c)
The
Company shall have requested and caused Mintz, Levin, Cohn,
Ferris,
Glovsky and Popeo, P.C., U.S. counsel for the Company to have furnished to
the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, in
form
and substance satisfactory in all respects to the Representatives.
(d)
The
Company shall have requested and caused Howrey, ▇▇▇▇▇, ▇▇▇▇▇▇ & White LLP,
IP counsel for the Company to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, in form
and substance satisfactory in all respects to the Representatives.
(e)
The
Representatives shall have received from ▇▇▇▇▇▇▇ Procter LLP,
U.S.
counsel for the Underwriters, such opinion or opinions, dated the Closing Date
and addressed to the Representatives, with respect to the issuance and sale
of
the Securities, the Registration Statement, the Disclosure Package, the
Prospectus (together with any supplement thereto) and other related matters as
the Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of enabling
them
to pass upon such matters.
(f)
The
Representatives shall have received from Goldfarb,
Levy, Eran, Meiri & Co., Israeli counsel for the Underwriters, such
opinion
or
opinions, dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Registration Statement,
the Disclosure Package, the Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably require, and
the
Company shall have furnished to such counsel such documents as they request
for
the purpose of enabling them to pass upon such matters.
(g)
The
Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chairman of the Board or the President and the principal
financial or accounting officer of the Company, dated the Closing Date, to
the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, the Disclosure Package and any amendment
or supplement thereto, as well as each electronic roadshow used in connection
with the offering of the Securities, and this Agreement and that:
20
(i)
the
representations and warranties of the Company in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing 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
the
Closing Date;
(ii)
no
stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or, to the Company’s
knowledge, threatened; and
(iii)
since
the
date of the most recent financial statements included in the Prospectus
(exclusive of any supplement thereto), there has been no material adverse effect
on the condition (financial or otherwise), prospects, 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 Disclosure Package and the Prospectus (exclusive
of any supplement thereto).
(h)
The
Company shall have requested and caused ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & Kasierer, a
member of Ernst & Young Global to have furnished to the Representatives, at
the Execution Time and at the Closing Date, letters, dated respectively as
of
the Execution Time and as of the Closing Date, in form and substance
satisfactory in all respects to the Representatives.
(i)
Subsequent
to the Execution Time or, if earlier, the dates as of which information is
given
in the Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto), there shall not have been
(i)
any change or decrease specified in the letter or letters referred to in
paragraph (h) 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 Subsidiary, 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 Disclosure Package
and
the Prospectus (exclusive of any supplement thereto) the effect of which, in
any
case referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof),
the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(j)
Prior
to
the Execution Time, the Company shall have furnished to the Representatives
a
letter substantially in the form of Exhibit A hereto from each executive officer
and director of the Company and from each shareholder and option holder
addressed to the Representatives.
21
(k)
The
Securities shall have been listed and admitted and authorized for trading on
the
Nasdaq National Markets, and satisfactory evidence of such action shall have
been provided to the Representatives.
(l)
Prior
to
the Closing Date, the Company shall have furnished to the Representatives such
further information, certificates and documents as the Representatives 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 Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company
in
writing or by telephone or facsimile confirmed in writing.
The
documents required to be delivered by this Section 6 shall be delivered at
the
office of ▇▇▇▇▇▇▇ Procter LLP,
counsel
for the Underwriters, at Exchange Place, Boston, Massachusetts on the Closing
Date.
7.
Reimbursement
of Underwriters’ Expenses.
If the
sale of the Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 hereof
is not satisfied, because of any termination pursuant to Section 10 hereof
or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than
by
reason of a default by any of the Underwriters, the Company will reimburse
the
Underwriters severally through ▇.▇. ▇▇▇▇▇▇▇▇▇, Towbin LLC on demand for all
out-of-pocket accountable expenses (including reasonable fees and disbursements
of counsel) that shall have been actually incurred by them in connection with
the proposed purchase and sale of the Securities.
8.
Indemnification
and Contribution.
(a)
The
Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter 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 (i) any untrue statement or alleged
untrue statement of a material fact contained in (A) the registration statement
for the registration of the Securities as originally filed or in any amendment
thereof, or (B) any Preliminary Prospectus, the Prospectus or any Issuer Free
Writing Prospectus, or in any amendment thereof or supplement thereto, (ii)
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
(iii) any act or failure to act or any alleged act or failure to act by any
Underwriter in connection with, or relating in any manner to, the Ordinary
Shares or the offering contemplated hereby, and which is included as part of
or
referred to in any loss, claim, damage, liability or action arising out of
or
based upon matters covered by clause (i) and (ii) above (provided,
that
the Company shall not be liable in the case of any matter covered by this clause
(iii) to the extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or action
resulted directly from any such act or failure to act undertaken or omitted
to
be taken by such Underwriter through its gross negligence or willful misconduct)
and
agrees to reimburse each such indemnified party, as incurred, 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 or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company
may
otherwise have.
22
(b)
Each
Underwriter severally and not jointly 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 each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will
be in addition to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the last paragraph of
the
cover page regarding delivery of the Securities and, under the heading
“Underwriting”, (i) the list of Underwriters and their respective participation
in the sale of the Securities, (ii) the sentences related to concessions and
reallowances and (iii) the paragraph related to stabilization syndicate covering
transactions and penalty bids in any Preliminary Prospectus, the Prospectus
and
any Issuer Free Writing Prospectus constitute the only information furnished
in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus.
(c)
Promptly
after receipt by an indemnified party under this Section 8 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 8,
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
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 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
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. It
is
understood that an indemnifying party shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all indemnified parties. 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.
23
(d)
In
the
event that the indemnity provided in paragraph (a) or (b) of this Section 8
is
unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters severally agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same)
(collectively “Losses”) to which the Company and one or more of the Underwriters
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 Underwriters on
the
other from the offering of the Securities; provided, however, that in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for
any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters 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 Underwriters 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
Underwriters shall be deemed to be equal to the total underwriting discounts
and
commissions, in each case as set forth on the cover page of the Prospectus.
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 Underwriters 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
Underwriters 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 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange
Act
and each director, officer, employee and agent of an Underwriter shall have
the
same rights to contribution as such Underwriter, 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).
24
9.
Default
by an Underwriter.
If any
one or more Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance
of
its or their obligations under this Agreement, the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set forth opposite their names in Schedule I
hereto bears to the aggregate amount of Securities set forth opposite the names
of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10%
of
the aggregate amount of Securities set forth in Schedule I hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 9, the Closing
Date
shall be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default
hereunder.
10.
Termination.
This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such time (i) trading in the
Company’s ordinary Shares shall have been suspended by the Commission or the
Nasdaq National Market or trading in securities generally on the New York Stock
Exchange or the Nasdaq National Market shall have been suspended or limited
or
minimum prices shall have been established on either of such Exchanges, (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 Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated
by
the Preliminary Prospectus or the Prospectus (exclusive of any supplement
thereto).
25
11.
Representations
and Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth
in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12.
Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Representatives, will be mailed, delivered or faxed to and
confirmed to them, care of ▇.▇. ▇▇▇▇▇▇▇▇▇, Towbin LLC, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, attention: General Counsel (fax no.: _______________);
or, if sent to the Company, will be mailed, delivered or faxed and confirmed
to
it at Rosetta Genomics Ltd., ▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, attention: Chief
Executive Officer (fax no.: +972__________________).
13.
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 8 hereof, and no other person
will have any right or obligation hereunder.
14.
No
fiduciary duty.
The
Company hereby acknowledges that (a) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which
it may be acting, on the other, (b) the Underwriters are acting as principal
and
not as an agent or fiduciary of the Company and (c) the Company’s engagement of
the Underwriters 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 any of the Underwriters has advised or is
currently advising the Company on related or other matters). The Company agrees
that it will not claim that the Underwriters have 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.
15.
Integration.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the Underwriters, or any of them, with respect
to
the subject matter hereof.
16.
Applicable
Law.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York.
26
17.
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 or the transactions contemplated
hereby.
18.
Agent
for Service; Submission to Jurisdiction; Waiver of Immunities.
By the
execution and delivery of this Agreement, the Company hereby designates and
appoints Rosetta Genomics Inc., a Delaware corporation, as the authorized agent
of the Company upon whom process may be served in any suit, proceeding or other
action against the Company instituted by any Underwriter or by any person
controlling an Underwriter (within the meaning of either the Act or the Exchange
Act) as to which such Underwriter or any such controlling person is a party
and
based upon this Agreement, or in any other action against the Company in any
federal or state court sitting in the County of New York, arising out of the
offering made by the Prospectus or any purchase or sale of the Securities in
connection therewith. The Company expressly accepts jurisdiction of any federal
or state court sitting in the County of New York in respect of any such suit,
proceeding or other action and, without limiting other methods of obtaining
jurisdiction, expressly submits to nonexclusive personal jurisdiction of any
such court in respect of any such suit, proceeding or other action. Such
designation and appointment shall be irrevocable, unless and until a successor
authorized agent in the County and State of New York reasonably acceptable
to
the Underwriters shall have been appointed by the Company such successor shall
have accepted such appointment and written notice thereof shall have been given
to the Underwriters. The Company further agrees that service of process upon
its
authorized agent or successor shall be deemed in every respect effective service
of process upon the Company in any such suit, proceeding or other action. In
the
event that service of any process or notice of motion or other application
to
any such court in connection with any such motion in connection with any such
action or proceeding cannot be made in the manner described above, such service
may be made in the manner set forth in conformance with the Hague Convention
on
the Service Abroad of Judicial and Extrajudicial Documents on Civil and
Commercial Matters or any successor convention or treaty. Nothing contained
in
this Agreement shall affect or limit the right of the Underwriters to serve
any
process or notice of motion or other application in any other manner permitted
by law or limit or affect the right of the Underwriters to bring any action
or
proceeding against the Company or any of its property in the courts of any
other
jurisdiction. The Company further agrees to take any and all action, including
the execution and filing of all such instruments and documents, as may be
necessary to continue such designations and appointments or such substitute
designations and appointments in full force and effect. The Company hereby
irrevocably waives any objection that it may have or hereafter have to the
laying of venue of any such action or proceeding arising out of or based on
the
Securities, or this Agreement or otherwise relating to the offering, issuance
and sale of the Securities in any Federal or state court sitting in the County
of New York and hereby further irrevocably waives any claim that any such action
or proceeding in any such court has been brought in an inconvenient forum.
The
Company agrees that any final judgment after exhaustion of all appeals or the
expiration of time to appeal in any such action or proceeding arising out of
the
sale of the Securities or this Agreement rendered by any such Federal court
or
state court shall be conclusive and may be enforced in any other jurisdiction
by
suit on the judgment or in any other manner provided by law. To the extent
that
the Company has or hereafter may acquire any immunity from jurisdiction of
any
court or from any legal process (whether through service of notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise)
with
respect to itself or its property, it hereby irrevocably waives such immunity
in
respect of its obligations under the above-referenced documents, to the extent
permitted by law.
19.
Counterparts.
This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
20.
Headings.
The
section headings used herein are for convenience only and shall not affect
the
construction hereof.
27
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 several
Underwriters.
| Very truly yours, | |||
| Rosetta Genomics Ltd. | |||
| By: | |||
|
Name: ▇▇▇▇ ▇▇▇▇▇▇ |
|||
|
Title:
Chief Executive Officer
and
President
|
The
foregoing Agreement is
hereby
confirmed and accepted
as
of the
date first above
written.
▇.▇.
▇▇▇▇▇▇▇▇▇, Towbin LLC
By:
Title:
For
itself and the other
several
Underwriters named in
Schedule
I to the foregoing
Agreement.
28
SCHEDULE
I
|
Underwriters
|
Number
of Underwritten Securities to be
Purchased
|
|
▇.▇.
▇▇▇▇▇▇▇▇▇, Towbin LLC
▇▇▇▇▇▇▇▇▇▇▇
& Co. Inc.
Total
|
||
29
SCHEDULE
II
Schedule
of Free Writing Prospectuses Included in the Disclosure
Package
[list
all
FWPs included in the Disclosure Package]
30
SCHEDULE
III
Number
of
Underwritten Securities:
Number
of
Option Securities:
Price
per
share to the public:
Closing
date:
31
EXHIBIT
A
Lock-Up
Agreement
_______
,
2006
▇.▇.
▇▇▇▇▇▇▇▇▇, Towbin LLC
As
Representative of the several Underwriters,
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
This
letter is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”), between Rosetta Genomics Ltd. a
corporation organized under the laws of the State of Israel (the “Company”), and
you as representative of a group of Underwriters named therein, relating to
an
underwritten initial public offering of Ordinary Shares, no par value (the
“Ordinary Shares”), of the Company.
In
order
to induce you and the other Underwriters to enter into the Underwriting
Agreement, the undersigned will not, without the prior written consent of ▇.▇.
▇▇▇▇▇▇▇▇▇, Towbin LLC, offer, sell, contract to sell, pledge or otherwise
dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of
the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the Securities and Exchange Commission promulgated thereunder with respect
to,
any Ordinary Shares of the Company or any securities convertible into or
exercisable or exchangeable for such Ordinary Shares, or publicly announce
an
intention to effect any such transaction, for a period of 180 days after the
date of the Underwriting Agreement.
If
(i)
the Company issues an earnings release or material news, or a material event
relating to the Company occurs, during the last 17 days of the lock-up period,
or (ii) prior to the expiration of the lock-up period, the Company announces
that it will release earnings results during the 16-day period beginning on
the
last day of the lock-up period, the restrictions imposed by this agreement
shall
continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event.
32
The
undersigned hereby further agrees that, prior to engaging in any transaction
or
taking any other action that is subject to the terms of this agreement, it
will
give notice thereof to the Company and will not consummate such transaction
or
take any such action unless it has received written confirmation from the
Company that the lock-up period (as such may have been extended pursuant to
the
previous paragraph) has expired.
Notwithstanding
the foregoing, the undersigned may transfer Ordinary Shares (i) as a
bona
fide
gift or
gifts, provided that the donee or donees thereof agree to be bound in writing
by
the restrictions set forth herein, or (ii) to any trust for the direct or
indirect benefit of the undersigned or the immediate family of the undersigned,
provided that the trustee of the trust agrees to be bound in writing by the
restrictions set forth herein, and provided further that any such transfer
shall
not involve a disposition for value. For purposes of this agreement, “immediate
family” shall mean any relationship by blood, marriage or adoption, not more
remote than first cousin.
The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company’s transfer agent and registrar against the transfer of Ordinary
Shares or securities convertible into or exchangeable or exercisable for
Ordinary Shares held by the undersigned except in compliance with the foregoing
restrictions.
If
for
any reason the Underwriting Agreement shall be terminated prior to the Closing
Date (as defined in the Underwriting Agreement), the agreement set forth above
shall likewise be terminated.
The
undersigned understands that the Company and the Underwriters are relying upon
this agreement in proceeding toward consummation of the offering. The
undersigned further understands that this agreement is irrevocable and shall
be
binding upon the undersigned’s heirs, legal representatives, successor, and
assigns.
| Yours very truly, | |||
|
Name |
|||
|
Authorized Signature |
|||
|
Title |
33