THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE ISRAELI SECURITIES LAW, 5728-1968, AS AMENDED, THE U.S. SECURITIES ACT OF 1933, AS AMENDED OR UNDER ANY APPLICABLE U.S. STATE SECURITIES LAWS...
EXHIBIT
4.4
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE ISRAELI SECURITIES LAW, 5728-1968, AS AMENDED, THE U.S.
SECURITIES ACT OF 1933, AS AMENDED OR UNDER ANY APPLICABLE U.S. STATE SECURITIES
LAWS (COLLECTIVELY, THE “SECURITIES
LAWS”). THEY
MAY NOT BE OFFERED FOR SALE, SOLD, CONVEYED, TRANSFERRED, PLEDGED, GIFTED,
ASSIGNED, ENCUMBERED OR OTHERWISE DISPOSED OF UNLESS (1) REGISTERED UNDER SUCH
SECURITIES LAWS, OR (2) PURSUANT TO AVAILABLE EXEMPTIONS FROM REGISTRATION FROM
SUCH SECURITIES LAWS AND THE RULES PROMULGATED THEREUNDER, PROVIDED THAT THE
HOLDER DELIVERS TO THE COMPANY AN OPINION OF COUNSEL, SATISFACTORY TO THE
COMPANY, CONFIRMING THE AVAILABILITY OF SUCH EXEMPTION. INVESTORS SHOULD BE
AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT
FOR AN INDEFINITE PERIOD OF TIME.
BIOCANCELL
THERAPEUTICS INC. ASSIGNABLE
WARRANT
To
purchase
Shares
of Common Stock (subject to adjustment) of
BIOCANCELL THERAPEUTICS INC. (the “Company”)
at
a per share price and subject to the terms detailed below
VOID
AFTER 17:00 p.m. Eastern Standard Time
on
the last day of the Warrant Period (as defined below)
THIS IS TO CERTIFY
THAT, [_________________] (the “Holder”) is entitled to
purchase from the Company up to [__________] fully paid and non-assessable
shares of Common Stock of the Company, nominal value US$.0l per share (the “Common Stock”) comprising (i)
the Purchased Shares (as such term is defined in the Subscription Agreement to
which this Warrant is attached (the “Subscription Agreement”)) and (ii) the
number of shares of Common Stock underlying the Convertible Debenture (as such
term is defined in the Subscription Agreement), subject to adjustment as set
forth herein (the “Warrant Shares”), at an exercise
price per Warrant Share equal to US$ [_____] as may be adjusted hereunder
(which, for convenience and indication purposes only, was equal to
NIS [___] on the relevant date) (the “Exercise Price”), during the
period commencing upon the date hereof and terminating upon the lapse of five
(5)
years following the Closing Date (as such term is defined in the
Subscription Agreement) (the “Warrant Period”). Notwithstanding
the foregoing, in the event that the Average Price (as defined in the
Subscription and Registration Rights Agreement) is lower than US$ 0.743 or
higher than US$ 0.821 (i.e., five percent lower or higher than the PPS (as
defined in the Subscription and Registration Rights Agreement)), the Exercise
Price shall be adjusted to the lower of: (i) the Average Price (in US$)
multiplied by 1.20, and (ii) the closing price of the shares of Common Stock of
the Company, as reported on the Tel Aviv Stock Exchange, on the Determination
Date (as defined in the Subscription and Registration Rights Agreement)
multiplied by 1.25. The Average Price and the closing price in subsection (ii)
shall be denominated in US$ by dividing the Average Price or the closing price
denominated in NIS by the exchange rate of the US$ to NIS at the close of
business of the Determination Date.
Notwithstanding,
in the event that the Loan Amount is converted prior to the end of the first
quarter following the second anniversary of the Closing, in accordance with the
terms of the Convertible Debenture, then the number of Warrant Shares shall be
decreased accordingly, to equal the portion of the interest attributable to the
Loan Amount that was so converted divided by the Exercise Price as adjusted. For
example, if the Convertible Debenture is converted on the Closing Date, the
number of Warrant Shares shall be decreased by 540,480.
|
1.
|
EXERCISE
OF WARRANT
|
1.1.
Cash Exercise of Warrant. This
Warrant may be exercised from time to time or at any time
during the Warrant Period by presentation and surrender thereof to the Company
at its principal office or at such other office or agency as it may designate
from time to time, accompanied by:
1.1.1.
A duly executed notice of exercise, in the form attached hereto as Exhibit A (the “Exercise Notice”);
and
1.1.2.
Payment to the Company, for the account of the Company, of the aggregate
Exercise Price for the number of Warrant Shares specified in the applicable
Exercise Notice, payable in immediately available funds by wire transfer to the
Company’s
bank account or by banker’s check or by any
other means of payment agreed upon between the Company and the Holder. The
Exercise Price will be paid in U.S. Dollars.
1.2.
Exercise on a Net-Issuance Basis.
In
lieu of payment to the Company of the Exercise Price as set forth in Section 1.1
above, the Holder may exercise the Warrant in whole or in part, into the number
of shares of Common Stock of the Company calculated pursuant to the following
formula, by surrendering the Warrant to the Company at the principal office of
the Company, accompanied by a written notice of exercise, specifying the portion
of the Warrant which the Holder desires to exercise:
|
X =
Y*
(A-B)
|
| A |
|
Where:
|
X
= the
number of
shares of Common Stock to be issued to the Holder;
Y
= the
number of
shares of Common Stock obtainable upon exercise of the relevant portion of
the Warrant;
A
=
the average closing price of a share of Common Stock of the Company in
the principal securities exchange on which the Company's shares are traded at
such time over a sixty (60) trading day period preceding the exercise date;
and
B
=
the Exercise Price of a Warrant Share, as adjusted.
- 2
-
Execution
Copy
1.3.
Partial Exercise,
Etc. If this Warrant should be exercised in part only, the
Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a new
Warrant evidencing
the rights of the Holder to purchase the balance of the Warrant Shares
purchasable
hereunder.
1.4.
Issuance of Warrant Shares. Upon
presentation and surrender of this Warrant accompanied
by a duly executed Exercise Notice and (unless the Holder elects to exercise
the Warrant on a net-issuance basis) the payment of the applicable aggregate
Exercise
Price pursuant to Section 1.1 above, the Company shall promptly (i) issue to
the
Holder the Warrant Shares to which the Holder is entitled; and (ii) deliver to
the Holder
the share certificate(s) evidencing such Warrant Shares together with cash, as
provided
in Section 1.5 hereof, in respect of any fractional Warrant Shares otherwise
issuable
upon such surrender. Upon receipt by the Company of this Warrant, the
applicable
Exercise Notice and (unless the Holder elects to exercise the Warrant on a
net-issuance
basis) the applicable aggregate Exercise Price, the Holder shall be deemed
to
be the holder of record of the Warrant Shares issuable upon such exercise,
notwithstanding
that the stock transfer books of the Company shall then be closed or that
certificates
representing such stock shall not then be actually delivered to the
Holder.
1.5. Fractional Shares. No fractions of
shares shall be issued in connection with the exercise of
this Warrant, and the number of shares issued shall be rounded up to the nearest
whole number (with cash being paid by the Company for any unissued fractional
shares).
1.6.
Taxes. The Holder acknowledges
that the grant of the Warrant, the issue of the Warrant Shares
and the execution and/or performance of this Warrant may have tax consequences
to the Holder and that the Company is not able to ensure or represent to
the
Holder the nature and extent of such tax consequences. The Company shall pay all
of the
applicable taxes and other charges in connection with the issuance of the
Warrant Shares
and the preparation and delivery of share certificates pursuant to this Section
1 in the
name of the Holder (such as documentary stamp or similar issue or transfer taxes
in respect
of the issue or delivery of Common Shares on exercise of this Warrant), but
shall not
pay any taxes payable by the Holder by virtue of the sale of this Warrant or the
Warrant
Shares by the Holder and the Holder shall indemnify the Company, without
derogating
from the Holder's obligation to pay such amounts, for any and all charges or
payments
as aforesaid. The Company shall withhold required taxes pursuant to applicable
law on payments to the Holder under this Warrant, unless the Holder shall
provide
the Company with written confirmation of withholding tax exemption in the form
prescribed by law.
1.7.
Additional Documents. The Holder
will sign any and all documents required by law, the Company’s ByLaws and/or
any agreement to which the Company is a party or by which it
bound, to facilitate the issuance of stock upon exercise of this
Warrant.
1.8.
Loss or Destruction of Warrant.
Upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant, and (in the
case
of loss, theft or destruction) of reasonable expense reimbursement and
satisfactory
- 3
-
indemnification,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
will execute and deliver a new Warrant of like tenor and date.
|
2.
|
RESERVATION
OF STOCK; PRESERVATION OF RIGHTS OF
HOLDER
|
2.1.
Reservation of Shares. The
Company hereby agrees that, at all times prior to the expiration
or exercise of this Warrant, it will maintain and reserve, free from
pre-emptive
or similar rights, such number of authorized but unissued shares of Common
Stock
so that this Warrant may be exercised without additional authorization of
Common
Stock after giving effect to all other warrants, convertible securities and
other rights
to acquire shares of the Company.
2.2.
Preservation of Rights. The
Company will not, by amendment of its organizational documents
or through reorganization, recapitalization, consolidation, merger, dissolution,
transfer of assets, issue or sale of securities or any other voluntary act,
avoid or
seek to avoid the observance or performance of any of the covenants,
stipulations, conditions
or terms to be observed or performed hereunder, but will at all times in good
faith
assist in the carrying out of all the provisions hereof and in taking of all
such actions
and making all such adjustments as may be necessary or appropriate in order to
fulfill
the provisions hereof.
|
3.
|
ADJUSTMENT
|
3.1.
Adjustments. The number of
Warrant Shares purchasable upon the exercise of this Warrant
and the payment of the Exercise Price shall be subject to adjustment from time
to time or
upon exercise as provided in this Section 3.
3.2.
Bonus Shares. In the event that
during the Warrant Period the Company shall distribute a
stock dividend or shares pursuant to a reclassification of its share capital to
all of the stockholders
of the Company (i.e., bonus shares) or issue rights, option or warrants for
its
Common Stock at below market price to all of the Company's stockholders, then
this Warrant
shall represent the right to acquire, in addition to the number of Warrant
Shares indicated in the caption of this Warrant, the amount of such bonus shares
andlor to receive the stock dividends, without payment of any additional
consideration therefor, to which the Holder would have been entitled had this
Warrant been exercised prior to the distribution of the stock dividends or the
bonus shares. Any adjustment made pursuant to this subsection 3.2 shall become
effective immediately after the effective date of such event retroactive to the
Closing Date (as defined in the Subscription Agreement). Whenever the number of
Warrant Shares purchasable upon the exercise of the Warrant is adjusted, as
herein provided, the Exercise Price payable upon the exercise of such Warrant
shall be adjusted by multiplying such Exercise Price immediately prior to such
adjustment by a fraction, the numerator of which shall be the number of Warrant
Shares purchasable upon the exercise of the Warrant immediately prior to such
adjustment, and the denominator of which shall be the number of Warrant Shares
so purchasable immediately thereafter.
- 4
-
3.3.
Consolidation and Division. In
the event that during the Warrant Period the Company consolidates
its share capital into stock of greater par value, or subdivides them into
stock
of lesser par value, then the number of Warrant Shares to be allotted on
exercise of this
Warrant after such consolidation or subdivision shall be reduced or increased
accordingly,
as the case may be, such increase or decrease, as the case may be, to
become
effective immediately after the opening of business on the day following the day
upon
which such subdivision or combination becomes effective, and in each case the
Exercise
Price shall be adjusted appropriately such that the aggregate consideration
hereunder
to the Company shall not change.
3.4.
Capital Reorganization.
In the event that during the Warrant Period a reorganization of
the
share capital of the Company is effected (other than subdivision, combination or
reclassification
provided for elsewhere in this Section 3) and the shares of Common Stock
are exchanged for other securities of the Company, then, as part of such
reorganization,
provision shall be made so that the Holder shall be entitled to purchase
upon
exercise of this Warrant such kind and number of shares or other securities of
the Company
to which the Holder would have been entitled had this Warrant been exercised
prior
to such reorganization, and such that the aggregate consideration to the Company
hereunder
shall not change.
3.5.
If at any time the Company shall distribute a dividend in liquidation or partial
liquidation or
by way of return of capital, or a dividend regardless of whether or not payable
out of earnings
or surplus legally available for dividends, the Exercise Price shall be reduced
by
an amount equal to the Dollar equivalent of the per-share distribution on the
record date fixed for the purpose of such distribution.
3.6.
In the event that the Company shall consolidate with or merge with or
into another corporation
or convey all or substantially all of its assets to another corporation or other
entity,
then, in each such case, the Holder, upon any exercise of this Warrant, at any
time after
the consummation of such consolidation, merger, or conveyance, shall be entitled
to
receive, in lieu of the Warrant Shares receivable upon the exercise of the
Warrant prior
to such consummation, the shares or other securities or property to which such
Holder
would have been entitled upon the consummation of such consolidation, merger
or
conveyance if the Holder had exercised the Warrants immediately prior thereto,
all subject
to further adjustment as provided in this Section 3, and the successor or
purchasing
corporation or other entity in such consolidation, merger or conveyance (if
not
the Company) shall duly execute and deliver to the Holder a supplement hereto
acknowledging
such corporation's or entity's obligations under the Warrant; and in each
such
case, the terms of the Warrant (including the exercisability, transfer and
adjustment provisions
of the Warrant) shall be applicable to the shares or other securities or
property receivable
upon the exercise of the Warrant after the consummation of such consolidation,
merger or conveyance.
3.7.
Adjustment due to Future Issuance of
Securities.
3.7.1.
Full Ratchet Anti-Dilution
Protection. Until such time in which an aggregate amount
of US$ 15,000,000 has been invested in the Company (excluding the
- 5
-
Execution
Copy
Excluded
Capital, as defined in the Subscription Agreement), in any event that the
Company issues any additional securities to the Purchaser or any third party,
save for Excluded Issuances (as defined in the Subscription Agreement), at a
purchase price, conversion price or exercise price per share less than the
Exercise Price, the Holder will benefit from a “full ratchet” anti-dilution
protection, such that the Exercise Price shall be retroactively from the Closing
Date (as defined in the Subscription Agreement) reduced to the lowest price per
share at which such additional securities shall have been issued.
3.7.2.
Most Favored Terms. Until such
time as an aggregate amount of US$ 15,000,000 has been invested in the Company
(excluding the Excluded Capital), in the event that the Purchaser or any third
party is issued shares or securities convertible into shares of the Company
under terms more favorable than those set forth in this Warrant, then, at the
option of the Holder, this Warrant shall be construed as containing the more
favorable terms afforded to such third party, as though such terms were
previously provided herein retroactively from the Closing Date (as defined in
the Subscription Agreement). For example, if warrants are offered at a higher
exercise price but at higher coverage to funds raised (over 100%) and or for a
term exceeding 5 years, then the number of Warrants under this Agreement will be
retroactively increased to equal such higher warrant coverage or its term will
be extended, as applicable. All other terms of the Warrant shall remain in
effect.
3.8.
Any dispute on matters under Section 3.2, 3.3, 3.4 and/or 3.7 shall be referred
to a resolution
by Giza Singer Even and ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ (PWC Israel). In the event
of
different determinations by Giza Singer Even and PWC, the dispute shall be
resolved by
calculating the average between the values determined by each of Giza Singer
Even and
PWC with respect to each parameter of their determination. The determination of
Giza
Singer Even and PWC will be exclusive and final. The non-prevailing party in
such dispute
shall bear the expenses of Giza Singer Even and PWC. The Company hereby
acknowledges
that the Purchaser and its affiliates retain the services of Giza Singer Even
and
PWC in the ordinary course of business for various tasks (including, but not
limited to,
accounting, tax, financial and fairness opinion, advisory services and the like)
and that
they will not be limited from retaining them also in the future. In that
respect, the Company
waives any claim it may have against the Purchaser and its affiliates in
connection
with a conflict of interest regarding the matters contemplated in this Section
3.8.
4.
NOTICE OF CERTAIN
EVENTS
If
at any time during the Warrant Period (i) there shall be any capital
reorganization or reclassification of the stock capital of the Company or any
other event set forth in Section 3
above; (ii) the Company shall consolidate with or merge with or into
another corporation or convey all or substantially all of its assets to another
corporation or other entity; or (iii) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company, then, in any one or more
of said events, the Company shall deliver to the Holder prior written notice
thereof, including the date on which (a) a record shall be taken in connection
with such event and (b) the consummation date of such event. Such written notice
shall be delivered to the Holder at
- 6
-
least
thirty (30) days prior to the consummation of the applicable event and not less
than thirty (30) days prior to the record date in respect thereto (subject to
the provisions of Section 7 herein).
5.
NOTICE OF
ADJUSTMENTS
Whenever
an adjustment pursuant to Section 3 above is effected, the Company shall
promptly compute such adjustment and deliver to the Holder a certificate setting
forth the number of Warrant Shares (or any other securities) for which this
Warrant is exercisable and the Exercise Price as a result of such adjustment, a
brief statement of the facts requiring such adjustment and the computation
thereof and when such adjustment has or will become effective.
6.
RIGHTS OF THE
HOLDER
The
Holder acknowledges that the Warrant Shares shall be subject to such certain
rights, privileges, restrictions and limitations as set forth in this Warrant
and the Certificate of Incorporation or ByLaws of the Company, as may be amended
from time to time. The Holder further acknowledges that the Warrant Shares are
not listed for trading and therefore the sale and transfer thereof are subject
to further limitations. This Warrant shall not entitle the Holder, by virtue
hereof, to any voting rights or other rights as a stockholder of the Company,
except for the rights expressly set forth herein.
7.
TERMINATION
Notwithstanding
anything to the contrary, this Warrant and all the rights conferred hereby shall
terminate and expire at the aforementioned time on the last day of the Warrant
Period.
8.
MISCELLANEOUS
8.1.
Entire Agreement;
Amendment. This Warrant, the Subscription Agreement and the
other
Transaction Documents (as defined in the Subscription Agreement) set forth the
entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes
all existing agreements among them concerning such subject matter. All
article
and section headings herein are inserted for convenience only and shall not
modify
or affect the construction or interpretation of any provision of this Warrant.
No modification
or amendment of this Warrant will be valid unless executed in writing by
the
Company and the Holder.
8.2.
Waiver. No failure or
delay on the part of any of the parties hereto in exercising any
right,
power or privilege hereunder and/or under any applicable laws or the exercise of
such
right or power in a manner inconsistent with the provisions of this Warrant or
applicable
law shall operate as a waiver thereof. Any waiver must be evidenced in
writing
signed by the party against whom the waiver is sought to be
enforced.
8.3.
Successors and Assigns;
Assignment. This Warrant shall inure to the benefit of, be binding
upon, and be enforceable by the Holder and its respective successors, assigns,
and
administrators. Either party may freely assign or transfer the rights granted
pursuant to
this Warrant. If, as a result of such assignment by the Purchaser, the Company
is
- 7
-
required
under applicable law to file any registration statement or prospectus with the
US Securities and Exchange Commission or any stock exchange or other similar
institution in any jurisdiction, that the Company would not be required to file
under the Subscription and Registration Rights Agreement, the party that seeks
such assignment will cover the Company's expenses for such filing. Upon the
request of the Holder, and subject to the approval of the Company’s General Meeting
to be convened as soon as practicable following the date of the Subscription and
Registration Rights Agreement to approve the transactions contemplated herein,
in the Subscription and Registration Rights Agreement and in the Convertible
Debenture, the Company shall cancel a portion of the Warrant (as solely
determined by the Holder), and shall grant, in lieu thereof, to the person
designated by the Holder an option to purchase such amount of Warrant Shares as
determined by the Holder on the same terms of the Warrant except that if the
holder shall be a director of the Company or shall otherwise be eligible for
Section 102 treatment, such option shall be granted under Section 102 of the
Israeli Income Tax Ordinance.
8.4.
Governing Law. Except as
explicitly set forth herein, this Warrant shall be governed
by and construed under the laws of the State of Israel, without regard
to
the conflicts of laws provisions thereof. Any dispute arising in connection
with
this Warrant shall be settled exclusively before the competent courts of the
city
of Tel-Aviv-Jaffa.
8.5.
Notices. Any notice required or
permitted to be given to a party pursuant to the provisions
of this Warrant will be in writing and will be effective and deemed delivered
to
such party on the earliest of the following: (a) all notices and other
communications delivered
in person or by courier service shall be deemed to have been delivered as of
actual
delivery thereof; or, (b) those given by facsimile transmission shall be deemed
delivered
on the following business day after transmission, with confirmed transmission
thereof;
or (c) all notices and other communications sent by registered mail (or air mail
if the
posting is international) shall be deemed given seven (7) days after posting:
All notices shall be addressed as set
forth below or at such other address as the party shall have
furnished to the other party in writing in accordance with this
provision:
8.5.1.
If sent to the Company to:
▇
▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Fax:
▇▇-▇▇▇▇▇▇▇
Email:
▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attention:
▇▇▇ ▇▇▇▇▇
with
a copy (which shall not constitute notice) to:
- 8
-
▇▇▇▇▇
▇▇▇▇, Adv.
▇▇▇▇▇▇,
▇▇▇▇ &
Co.
1
Azrieli Center
▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Fax:
▇▇▇▇-▇-▇▇▇▇▇▇▇
Email:
▇.▇▇▇▇@▇▇▇-▇▇▇.▇▇▇
8.5.2.
If sent to the Purchaser to: [______________]
8.6.
Severability. If any provision
of this Warrant is held to be unenforceable, this Warrant shall
be considered divisible and such provision shall be deemed inoperative to the
extent
it is deemed unenforceable, and in all other respects this Warrant shall remain
in full
force and effect; provided, however,
that if any such provision may be made enforceable
by limitation thereof, then such provision shall be deemed to be so limited
and
shall be enforceable to the maximum extent permitted by applicable
law.
8.7.
Counterparts. This Warrant may
be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument.
Facsimile
signatures of a party shall be binding as evidence of such party's agreement
hereto
and acceptance hereof.
[THE
REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
- 9
-
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized.
| Dated: [____________] | BIOCANCELL THERAPEUTICS INC. | ||
|
|
By:
|
||
| Name: | |||
| Title: | |||
AGREED
AND ACCEPTED:
By:____________________________
Name:
Title:
- 10
-
Exhibit
A
Exercise
Notice
Date:
________
The
undersigned, pursuant to the provisions set forth in the Warrant to which this
Exercise Notice is attached (the “Warrant”), hereby elects
to purchase of the Warrant Shares (as such term is defined in the
Warrant).
Signature:
Address:
_________________________
_________________________
_________________________