ORDINARY SHARES PURCHASE WARRANT To Purchase ____________ Ordinary Shares of XTL Biopharmaceuticals Ltd.
Exhibit
1.3
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”),
AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
To
Purchase ____________ Ordinary Shares of
THIS
ORDINARY SHARES PURCHASE WARRANT CERTIFIES that, for value received,
___________________________ (the “Holder”),
is
entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time on or after the Effective Date
(the “Initial
Exercise Date”)
and on
or prior to the close of business on March 22, 2011 (the “Termination
Date”)
but
not thereafter, to subscribe for and purchase from XTL Biopharmaceuticals
Ltd.,
a
public
company limited by shares organized under the laws of the State of Israel
(the
“Company”),
up to
___________ ordinary shares (the “Warrant
Shares”),
par
value NIS 0.02 per ordinary share, of the Company (the “Ordinary
Shares”).
The
purchase price of one Ordinary Share (the “Exercise
Price”)
under
this Warrant shall be to $0.875, subject to adjustment hereunder. The Exercise
Price and the number of Warrant Shares for which the Warrant is exercisable
shall be subject to adjustment as provided herein.
Capitalized
terms used and not otherwise defined herein shall have the meanings set forth
in
that certain Securities Purchase Agreement (the “Purchase
Agreement”),
dated
March 17, 2006, between the Company and the purchaser’s signatory thereto. All
references herein to “dollars” or “$” are to United States dollars, and all
references to “Shekels” or “NIS” are to New Israeli
Shekels.
1. Title
to Warrant.
Prior to
the Termination Date and subject to compliance with applicable laws and Section
7 of this Warrant, this Warrant and all rights hereunder are transferable,
in
whole or in part, at the office or agency of the Company by the Holder in
person
or by duly authorized attorney, upon surrender of this Warrant together with
the
Assignment Form annexed hereto properly endorsed. If any such transfer is
prior
to the Effective Date, the transferee shall sign an investment letter in
form
and substance reasonably satisfactory to the Company.
1
2. Authorization
of Shares.
The
Company covenants that all Warrant Shares which may be issued upon the exercise
of the purchase rights represented by this Warrant will, upon exercise of
the
purchase rights represented by this Warrant, be duly authorized, validly
issued,
fully paid and nonassessable and free from all taxes, liens and charges in
respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue).
3. Exercise
of Warrant.
(a) Exercise
of the purchase rights represented by this Warrant may be made at any time
or
times on or after the Initial Exercise Date and on or before the Termination
Date by the surrender of this Warrant and the Notice of Exercise Form annexed
hereto duly executed, at the office of the Company (or such other office
or
agency of the Company as it may designate by notice in writing to the registered
Holder at the address of such Holder appearing on the books of the Company)
and
upon payment of the Exercise Price of the shares thereby purchased by wire
transfer or cashier’s check drawn on a United States bank, if applicable, or by
means of a cashless exercise pursuant to Section 3(d), the Company shall
deliver
to The Bank of New York certificates for the number of Warrant Shares so
purchased, and the Holder shall be entitled to receive from The Bank of New
York
ADRs representing the number of Warrant Shares so purchased. ADRs for shares
purchased hereunder shall be delivered to the Holder within three Trading
Days
after the date on which this Warrant shall have been exercised as aforesaid.
This Warrant shall be deemed to have been exercised and such certificate
or
certificates shall be deemed to have been issued, and the Holder or any other
person so designated to be named therein shall be deemed to have become a
holder
of record of such ADRs for all purposes, as of the date the Warrant has been
exercised by payment to the Company of the Exercise Price and all taxes required
to be paid by the Holder, if any, pursuant to Section 5 prior to the
issuance of such ADRs, have been paid.
(b) If
this
Warrant shall have been exercised in part, the Company shall, at the time
of
delivery of the ADRs representing Warrant Shares, deliver to the Holder a
new
Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant
Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
(c) If
the
Company fails to deliver to the Holder ADRs representing the Warrant Shares
pursuant to this Section 3 by the third Trading Day after exercise hereof,
then
the Holder will have the right to rescind such exercise. In addition to any
other rights available to the Holder, if the Company fails to cause its transfer
agent to transmit to the Holder ADRs representing the Warrant Shares pursuant
to
an exercise on or before the third Trading Day following a Warrant exercise,
and
if after such date the Holder is required by its broker to purchase (in an
open
market transaction or otherwise) ADRs to deliver in satisfaction of a sale
by
the Holder of ADRs representing the Warrant Shares which the Holder anticipated
receiving upon such exercise (a “Buy-In”), then the Company shall (1) pay in
cash to the Holder the amount by which (x) the Holder’s total purchase price
(including brokerage commissions, if any) for the ADRs so purchased exceeds
(y)
the amount obtained by multiplying (A) the number of ADRs that the Company
was
required to deliver to the Holder in connection with the exercise at issue
times
(B) the price at which the sell order giving rise to such purchase obligation
was executed, and (2) at the option of the Holder, either reinstate the portion
of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored or deliver to the Holder the number of ADRs that would have
been
issued had the Company timely complied with its exercise and delivery
obligations hereunder. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the Buy-In, together
with applicable confirmations and other evidence reasonably requested by
the
Company. Nothing herein shall limit a ▇▇▇▇▇▇’s right to pursue any other
remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with
respect to the Company’s failure to timely deliver ADRs upon exercise of the
Warrant as required pursuant to the terms hereof.
2
(d) If
at any
time after one year from the Closing Date there is no effective registration
statement registering the resale of the Warrant Shares by the Holder, this
Warrant may also be exercised at such time by means of a “cashless exercise” in
which the Holder shall be entitled to receive a certificate for the number
of
Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by
(A),
where:
(A)
= the Closing Price on the Trading Day immediately preceding the date of
such election;
(B)
= the Exercise Price of the Warrant, as adjusted; and
(X)
= the number of Warrant Shares issuable upon exercise of this Warrant in
accordance with the terms of this Warrant.
4. No
Fractional Shares or Scrip. No
fractional ADRs or scrip representing fractional ADRs shall be issued upon
the
exercise of this Warrant. As to any fraction of an ADR which Holder would
otherwise be entitled to purchase upon such exercise, the Company shall pay
a
cash adjustment in respect of such final fraction in an amount equal to such
fraction multiplied by the number of Ordinary Shares represented by one ADR,
and
then multiplied by the Exercise Price.
5. Charges,
Taxes and Expenses.
Issuance
of certificates for Warrant Shares shall be made without charge to the Holder
for any issue or transfer tax or other incidental expense in respect of the
issuance of such certificate, all of which taxes and expenses shall be paid
by
the Company, and such certificates shall be issued in the name of the Holder
or
in such name or names as may be directed by the Holder; provided,
however,
that in
the event ADRs for Warrant Shares are to be issued in a name other than the
name
of the Holder, this Warrant when surrendered for exercise shall be accompanied
by the Assignment Form attached hereto duly executed by the Holder; and the
Company may require, as a condition thereto, the payment of a sum sufficient
to
reimburse it for any transfer tax incidental thereto.
3
6. Closing
of Books.
The
Company will not close its shareholder books or records in any manner which
prevents the timely exercise of this Warrant, pursuant to the terms hereof.
7. Transfer,
Division and Combination.
(a) Subject
to compliance with any applicable securities laws and the conditions set
forth
in Sections 1 and 7(e) hereof and to the provisions of Section 4.1 of the
Purchase Agreement, this Warrant and all rights hereunder are transferable,
in
whole or in part, upon surrender of this Warrant at the office of the Company,
together with a written assignment of this Warrant substantially in the form
attached hereto duly executed by the Holder or its agent or attorney and
funds
sufficient to pay any transfer taxes payable upon the making of such transfer.
Upon such surrender and, if required, such payment, the Company shall execute
and deliver a new Warrant or Warrants in the name of the assignee or assignees
and in the denomination or denominations specified in such instrument of
assignment, and shall issue to the assignor a new Warrant evidencing the
portion
of this Warrant not so assigned, and this Warrant shall promptly be cancelled.
A
Warrant, if properly assigned, may be exercised by a new holder for the purchase
of Warrant Shares without having a new Warrant issued.
(b) This
Warrant may be divided or combined with other Warrants upon presentation
hereof
at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by the Holder or its agent or attorney. Subject to compliance with
Section 7(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants
in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice.
(c) The
Company shall prepare, issue and deliver at its own expense (other than transfer
taxes) the new Warrant or Warrants under this Section 7.
(d) The
Company agrees to maintain, at its aforesaid office, books for the registration
and the registration of transfer of the Warrants.
(e) If,
at
the time of the surrender of this Warrant in connection with any transfer
of
this Warrant, the transfer of this Warrant shall not be registered pursuant
to
an effective registration statement under the Securities Act and under
applicable state securities or blue sky laws, the Company may require, as
a
condition of allowing such transfer (i) that the Holder or transferee of
this
Warrant, as the case may be, furnish to the Company a written opinion of
counsel
(which opinion shall be in form, substance and scope customary for opinions
of
counsel in comparable transactions) to the effect that such transfer may
be made
without registration under the Securities Act and under applicable state
securities or blue sky laws, (ii) that the holder or transferee execute and
deliver to the Company an investment letter in form and substance acceptable
to
the Company and (iii) that the transferee be an “accredited investor” as defined
in Rule 501(a) promulgated under the Securities Act.
4
8. No
Rights as Shareholder until Exercise. This
Warrant does not entitle the Holder to any voting rights or other rights
as a
shareholder of the Company prior to the exercise hereof. Upon the surrender
of
this Warrant and the payment of the aggregate Exercise Price, the Warrant
Shares
so purchased shall be deemed to be issued to such Holder as the record owner
of
such Ordinary Shares as of the close of business on the later of the date
of
such surrender or payment.
9. Loss,
Theft, Destruction or Mutilation of Warrant.
The
Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it (which, in the case of the Warrant, shall not
include the posting of any bond), and upon surrender and cancellation of
such
Warrant, if mutilated, the Company will make and deliver a new Warrant of
like
tenor and dated as of such cancellation, in lieu of such Warrant.
10. Saturdays,
Sundays, Holidays, etc. If
the
last or appointed day for the taking of any action or the expiration of any
right required or granted herein shall be a Saturday, Sunday or a legal holiday,
then such action may be taken or such right may be exercised on the next
succeeding day not a Saturday, Sunday or legal holiday.
11. Adjustments
of Exercise Price and Number of Warrant Shares. The
number and kind of securities purchasable upon the exercise of this Warrant
and
the Exercise Price shall be subject to adjustment from time to time upon
the
happening of any of the following. In case the Company shall (i) pay a
dividend in Ordinary Shares or make a distribution in Ordinary Shares to
all
holders of its outstanding Ordinary Shares, (ii) subdivide its outstanding
Ordinary Shares into a greater number of shares, (iii) combine its outstanding
Ordinary Shares into a smaller number of Ordinary Shares, or (iv) issue any
shares of its capital stock in a reclassification of the Ordinary Shares,
then
the number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the Holder shall be entitled
to receive the kind and number of Warrant Shares or other securities of the
Company which it would have owned or have been entitled to receive had such
Warrant been exercised in advance thereof. Upon each such adjustment of the
kind
and number of Warrant Shares or other securities of the Company which are
purchasable hereunder, the Holder shall thereafter be entitled to purchase
the
number of Warrant Shares or other securities resulting from such adjustment
at
an Exercise Price per Warrant Share or other security obtained by multiplying
the Exercise Price in effect immediately prior to such adjustment by the
number
of Warrant Shares purchasable pursuant hereto immediately prior to such
adjustment and dividing by the number of Warrant Shares or other securities
of
the Company resulting from such adjustment. An adjustment made pursuant to
this
paragraph shall become effective immediately after the effective date of
such
event retroactive to the record date, if any, for such event.
5
12. Reclassification,
Merger, Consolidation or Disposition of Assets. In
case
the Company shall reclassify its Ordinary Shares, consolidate or merge with
or
into another corporation (where the Company is not the surviving corporation),
or sell, transfer or otherwise dispose of all or substantially all its property,
assets or business to another corporation and, pursuant to the terms of such
reclassification, merger, consolidation or disposition of assets, shares
of
common stock of the successor or acquiring corporation, or any cash, shares
of
stock or other securities or property of any nature whatsoever (including
warrants or other subscription or purchase rights) in addition to or in lieu
of
common stock of the successor or acquiring corporation (“Other
Property”),
are
to be received by or distributed to the holders of Ordinary Shares of the
Company, then the Holder shall have the right thereafter to receive, upon
exercise of this Warrant, the number of shares of common stock of the successor
or acquiring corporation and Other Property receivable upon or as a result
of
such reclassification, merger, consolidation or disposition of assets by
a
holder of the total number of shares of Ordinary Shares for which this Warrant
is exercisable immediately prior to such event. In case of any such
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume
the
due and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Company and
all
the obligations and liabilities hereunder, subject to such modifications
as may
be deemed appropriate (as determined in good faith by resolution of the Board
of
Directors of the Company) in order to provide for adjustments of Warrant
Shares
for which this Warrant is exercisable which shall be as nearly equivalent
as
practicable to the adjustments provided for in this Section 12. For purposes
of
this Section 12, “common stock of the successor or acquiring corporation” shall
include stock of such corporation of any class which is not preferred as
to
dividends or assets over any other class of stock of such corporation and
which
is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible into
or
exchangeable for any such stock, either immediately or upon the arrival of
a
specified date or the happening of a specified event and any warrants or
other
rights to subscribe for or purchase any such stock. The foregoing provisions
of
this Section 12 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of assets.
13. Voluntary
Adjustment by the Company. The
Company may at any time during the term of this Warrant reduce the then current
Exercise Price to any amount and for any period of time deemed appropriate
by
the Board of Directors of the Company.
14. Notice
of Adjustment. Whenever
the number of Warrant Shares or number or kind of securities or other property
purchasable upon the exercise of this Warrant or the Exercise Price is adjusted,
as herein provided, the Company shall give notice thereof to the Holder,
which
notice shall state the number of Warrant Shares (and other securities or
property) purchasable upon the exercise of this Warrant and the Exercise
Price
of such Warrant Shares (and other securities or property) after such adjustment,
setting forth a brief statement of the facts requiring such adjustment and
setting forth the computation by which such adjustment was made.
6
15. Authorized
Shares. The
Company covenants that during the period the Warrant is outstanding, it will
reserve from its authorized and unissued Ordinary Shares a sufficient number
of
shares to provide for the issuance of the Warrant Shares upon the exercise
of
any purchase rights under this Warrant. The Company further covenants that
its
issuance of this Warrant shall constitute full authority to its officers
who are
charged with the duty of executing ordinary share certificates to execute
and
issue the necessary certificates for the ADRs upon the exercise of the purchase
rights under this Warrant. The Company will take all such reasonable action
as
may be necessary to assure that such ADRs may be issued as provided herein
without violation of any applicable law or regulation, or of any requirements
of
the Trading Market upon which the ADRs may be listed.
Except
and to the extent as waived or consented to by the Holder, the Company shall
not
by any action, including, without limitation, amending its Memorandum and
Articles of Association or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, intentionally avoid or seek to avoid the observance or
performance of any of the express terms of this Warrant, but will at all
times
in good faith assist in the carrying out of all such terms. Without limiting
the
generality of the foregoing, the Company will (a) not increase the par value
of
any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (b) take all such action
as may
be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable Warrant Shares upon the exercise of this
Warrant, and (c) use commercially reasonable efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform
its
obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having
jurisdiction thereof.
16. Miscellaneous.
(a) Jurisdiction.
This
Warrant shall constitute a contract under the laws of New York, without regard
to its conflict of law, principles or rules.
(b) Restrictions.
The
Holder acknowledges that this Warrant will have restrictions upon transfer
imposed by state and federal securities laws and will have an appropriate
legend
imprinted thereon.
(c) Nonwaiver.
No
course
of dealing or any delay or failure to exercise any right hereunder on the
part
of the Holder shall operate as a waiver of such right or otherwise prejudice
the
Holder’s rights, powers or remedies, notwithstanding all rights hereunder
terminate on the Termination Date.
7
(d) Notices.
Any
notice, request or other document required or permitted to be given or delivered
to the Holder by the Company shall be delivered in accordance with the notice
provisions of the Purchase Agreement; provided that upon any permitted
assignment of this Warrant, the assignee shall promptly provide the Company
with
its contact information.
(e) Limitation
of Liability. No
provision hereof, in the absence of any affirmative action by the Holder
to
exercise this Warrant or purchase Warrant Shares, and no enumeration herein
of
the rights or privileges of Holder, shall give rise to any liability of Holder
for the purchase price of any Ordinary Shares or as a shareholder of the
Company, whether such liability is asserted by the Company or by creditors
of
the Company.
(f) Remedies.
The
Holder, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of
its
rights under this Warrant. The Company agrees that monetary damages would
not be
adequate compensation for any loss incurred by reason of a breach by it of
the
provisions of this Warrant and hereby agrees to waive the defense in any
action
for specific performance that a remedy at law would be adequate.
(g) Successors
and Assigns. Subject
to applicable securities laws, this Warrant and the rights and obligations
evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and permitted assigns of the
Holder. The provisions of this Warrant are intended to be for the benefit
of all
Holders from time to time of this Warrant and shall be enforceable by any
such
Holder or holder of Warrant Shares.
(h) Amendment.
This
Warrant may be modified or amended or the provisions hereof waived with the
written consent of the Company and the Holder.
(i) Severability.
Wherever
possible, each provision of this Warrant shall be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of this
Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions
of
this Warrant.
(j) Headings.
The
headings used in this Warrant are for the convenience of reference only and
shall not, for any purpose, be deemed a part of this Warrant.
[signature
on following page]
8
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized.
|
Dated:
March 22, 2006
|
||
| |
|
|
| By: | ||
|
Name: ▇▇▇ ▇▇▇▇▇▇▇ |
||
|
Title:
Chief
Executive Officer
|
||
NOTICE
OF EXERCISE
To:
XTL
Biopharmaceuticals Ltd.
(1) The
undersigned hereby elects to purchase _____________ Warrant Shares of XTL
Biopharmaceuticals Ltd. pursuant to the terms of the attached Warrant (only
if
exercised in full), and tenders herewith payment of the exercise price in
full,
together with all applicable transfer taxes, if any.
(2) Please
issue ADRs representing said Warrant Shares in the name of the undersigned
or in
such other name as is specified below:
_________________________
The
ADRs
shall be delivered to the following:
_________________________
_________________________
_________________________
(3) Accredited
Investor. The
undersigned is an “accredited investor” as defined in Regulation D
promulgated under the Securities Act of 1933, as amended.
PURCHASER:
________________________________
By:
_____________________________
Name:
Title:
ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute this form and supply required information.
Do not use this form to exercise the warrant.)
FOR
VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to:
| Name: |
______________________________________
|
| Address: |
______________________________________
|
|
______________________________________
|
|
|
______________________________________
|
Dated:
_______________, _____
| Holder’s Signature: |
______________________________________
|
| Holder’s Address: |
______________________________________
|
|
______________________________________
|
|
|
______________________________________
|
Signature
Guaranteed: _________________________________
NOTE:
The
signature to this Assignment Form must correspond with the name as it appears
on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.