UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16
under the Securities Exchange Act of 1934
For the month of November 2024
Commission file number: 001-38428
POLYPID LTD.
(Translation of registrant’s name into English)
18 Hasivim Street
Petach Tikva 495376, Israel
(Address of principal executive office)
Indicate by check mark whether the registrant
files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
CONTENTS
Execution of Sales Agreement
On November 8, 2024, PolyPid.
Ltd., or the Company, entered into a Sales Agreement, or the Sales Agreement, with Oppenheimer & Co. Inc., or the Sales Agent, pursuant
to which the Company may offer and sell, from time to time, through the Sales Agent, up to $8,250,000 of the Company’s ordinary
shares, no par value per share. The ordinary shares will be offered and sold pursuant to the Company’s Registration Statement on Form F-3 (File No. 333-280658), or the Registration Statement, and a prospectus supplement to the Registration Statement.
The Company is not obligated
to sell any ordinary shares under the Sales Agreement. Subject to the terms and conditions of the Sales Agreement, the Sales Agent will
use commercially reasonable efforts consistent with their normal trading and sales practices, applicable state and federal law, rules
and regulations and the rules of The Nasdaq Capital Market to sell ordinary shares from time to time based upon the Company’s instructions,
including any price, time or size limits specified by the Company. Upon delivery of a placement notice to the Sales Agent, and subject
to the Company’s instructions in that notice, and the terms and conditions of the Sales Agreement generally, the Sales Agent may
sell the ordinary shares by any method permitted by law deemed to be an “at the market offering” as defined by Rule 415(a)(4)
promulgated under the Securities Act of 1933, as amended. The Sales Agent’s obligations to sell ordinary shares under the Sales
Agreement are subject to satisfaction of certain conditions, and other customary closing conditions. The Company will pay the Sales Agent
a commission equal to 3.0% of the aggregate gross proceeds from each sale of ordinary shares and has agreed to provide the Sales Agent
with customary indemnification and contribution rights. The Company has also agreed to reimburse the Sales Agent for certain specified
expenses.
The foregoing summary of the
Sales Agreement does not purport to be complete and is qualified in its entirety by reference to the Sales Agreement, which is attached
as Exhibit 10.1 to this Report and is incorporated herein by reference.
A copy of the opinion of Sullivan
& Worcester Tel Aviv (Har-Even & Co.) relating to the legality of the issuance and sale of the ordinary shares is filed herewith
as Exhibit 5.1.
This Report shall not constitute
an offer to sell or the solicitation to buy nor shall there be any sale of the ordinary shares in any state or jurisdiction in which such
offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
This
Report is incorporated by reference into the Company’s registration statements on Form F-3 (File No. 333-276826 and
File No. 333-280658) and Form S-8 (File No. 333-239517, File No. 333-271060, File No. 333-277703 and File No. 333-280662) filed with the
Securities and Exchange Commission to be a part thereof from the date on which this report is submitted, to the extent not superseded
by documents or reports subsequently filed or furnished.
EXHIBIT INDEX
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
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PolyPid Ltd. |
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| Date: November 8, 2024 |
By: |
/s/ Dikla Czaczkes Akselbrad |
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Name: |
Dikla Czaczkes Akselbrad |
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Title: |
Chief Executive Officer |
Exhibit 5.1
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Sullivan & Worcester Tel Aviv
28 HaArba’a St. HaArba’a Towers
North Tower, 35th Floor
Tel-Aviv, Israel |
+972-747580480
sullivanlaw.com |
November 8, 2024
| To: |
| PolyPid Ltd. |
18 Hasivim Street
Petach Tikva 4959376, Israel |
Re: Registration Statement on Form F-3
Ladies and Gentlemen:
We have acted as Israeli counsel
to PolyPid Ltd., a company organized under the laws of the State of Israel (the “Company”), in connection with its
registration statement on Form F-3, File No. 333-280658 (the “Registration Statement”), the base prospectus included
therein and the related prospectus supplement (such prospectus, as supplemented by such prospectus supplement, the “Prospectus
Supplement”) filed or to be filed with the Securities and Exchange Commission (the “SEC”) under the Securities
Act of 1933, as amended (the “Securities Act”) with respect to the sale of up to $8,250,000 of ordinary shares (the
“ATM Shares”) of the Company, no par value per share (the “Ordinary Shares”) from time to time pursuant
to a sales agreement, dated as of November 8, 2024 (the “Sales Agreement”), entered into by and between the Company
and Oppenheimer & Co. Inc.
We have also acted as Israeli
counsel to the Company in connection with the Sales Agreement.
In connection herewith, we
have examined the originals, or photocopies or copies, certified or otherwise identified to our satisfaction, of: (i) the Registration
Statement; (ii) the Prospectus Supplement; (iii) the amended and restated articles of association of the Company, as currently in effect
(the “Articles”); (iv) minutes of meetings of the board of directors of the Company (the “Board”)
at which the filing of the Registration Statement and the actions to be taken in connection therewith, as well as the execution of the
Sales Agreement and the actions to be taken in connection therewith, were approved; and (v) such other corporate records, agreements,
documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives
of the Company as we have deemed relevant and necessary as a basis for the opinions hereafter set forth. We have also made inquiries of
such officers and representatives as we have deemed relevant and necessary as a basis for the opinions hereafter set forth.
In such examination, we have
assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to us as certified, confirmed as photostatic copies and
the authenticity of the originals of such latter documents. We have also assumed the truth of all facts communicated to us by the Company
and that all minutes of meetings of the Board and the shareholders of the Company that have been provided to us are true and accurate
and have been properly prepared in accordance with the Articles and all applicable laws.
Based upon and subject to
the foregoing, we are of the opinion that with respect to the ATM Shares, assuming that prior to the issuance of any of the ATM Shares
under the Sales Agreement, the price, number of ATM Shares and certain other terms of issuance with respect to any specific placement
notice delivered under the Sales Agreement will be authorized and approved by the Board or a pricing committee of the Board in compliance
with applicable Israeli law (for purposes of this paragraph, the “Authorizing Resolutions”), all corporate proceedings
necessary for the authorization, issuance and delivery of the ATM Shares shall have been taken and, upon issuance pursuant to the terms
of the Sales Agreement and in accordance with resolutions of the Board related to the offering of the ATM Shares, the ATM Shares will
be validly issued, fully paid and non-assessable.
With respect to our opinion
as to the ATM Shares, we have assumed that, at the time of issuance and sale and to the extent any such issuance would exceed the maximum
share capital of the Company currently authorized, the number of Ordinary Shares that the Company is authorized to issue shall have been
increased in accordance with the Articles such that a sufficient number of Ordinary Shares are authorized and available for issuance under
the Articles.
Members of our firm are admitted
to the Bar in the State of Israel, and we do not express any opinion as to the laws of any other jurisdiction. This opinion is limited
to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated.
We consent to the filing of
this opinion as an exhibit on a Report of Foreign Private Issuer on Form 6-K of the Company being filed on the date hereof and to the
reference to our firm appearing under the captions “Legal Matters” and “Enforceability of Civil Liabilities” in
the Prospectus Supplement forming part of the Registration Statement. In giving this consent, we do not thereby admit that we are within
the category of persons whose consent is required under Section 7 of the Securities Act, the rules and regulations of the SEC promulgated
thereunder or Item 509 of the SEC’s Regulation S-K under the Securities Act.
This opinion letter is rendered
as of the date hereof and we disclaim any obligation to advise you of facts, circumstances, events or developments that may be brought
to our attention after the effective date of this opinion that may alter, affect or modify the opinions expressed herein.
Very truly yours,
| /s/ Sullivan & Worcester Tel-Aviv (Har-Even & Co.) |
|
| Sullivan& Worcester Tel-Aviv (Har-Even & Co.) |
|
Exhibit 10.1
POLYPID LTD.
Ordinary Shares
Sales Agreement
November 8, 2024
Oppenheimer & Co. Inc.
85 Broad Street
New York, NY 10004
Ladies and Gentlemen:
POLYPID LTD., a company organized
under the laws of the State of Israel (the “Company”), confirms its agreement (this “Agreement”)
with Oppenheimer & Co. Inc. (the “Agent”), as follows:
1. Issuance
and Sale of Ordinary Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and
subject to the conditions set forth herein, it may issue and sell to or through the Agent, ordinary shares (the “Placement
Shares”), no par value per share, of the Company (the “Ordinary Shares”); The offer and sale of
Placement Shares through the Agent will be effected pursuant to the Registration Statement filed by the Company and which will be declared
effective by the United States Securities and Exchange Commission (the “Commission”), although nothing in this
Agreement shall be construed as requiring the Company to use the Registration Statement to issue Placement Shares.
The Company has filed or will
file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and
the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration
statement on Form F-3, including a base prospectus, relating to certain securities, including the Placement Shares to be issued from time
to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder.
The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement,
which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus
Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the prospectus included as part of
such registration statement, as supplemented by the Prospectus Supplement, relating to the Placement Shares to be issued from time to
time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus
and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement
Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or
incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with
the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant
to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus
or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement, as it may be
supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement
have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together
with any then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.”
Any reference herein to the
Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include
the documents, if any, incorporated by reference therein (the “Incorporated Documents”), including, unless the
context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms
“amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement,
the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange
Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or
such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references
to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy
filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data
Electronic Application system when used by the Commission (collectively, “EDGAR”).
2. Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it will
notify the Agent by email notice (or other method mutually agreed to by the parties) of the number of Placement Shares to be issued, the
time period during which sales are requested to be made, any limitation on the number of Placement Shares that may be sold in any one
day and any minimum price below which sales may not be made (a “Placement Notice”), the form of which is attached
hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule
3 (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals
from the Agent set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The Placement Notice shall
be effective unless and until (i) the Agent declines to accept the terms contained therein for any reason, in its sole discretion, (ii)
the entire amount of the Placement Shares thereunder have been sold, (iii) the Company suspends or terminates the Placement Notice or
(iv) this Agreement has been terminated under the provisions of Section 13. The amount of any discount, commission or other compensation
to be paid by the Company to the Agent in connection with the sale of the Placement Shares shall be calculated in accordance with the
terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation
whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to the Agent and
the Agent does not decline (and the Company does not suspend or terminate in accordance with the terms of this Agreement) such Placement
Notice pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between
the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control with respect to the matters
covered thereby.
3. [RESERVED].
4. Sale
of Placement Shares by the Agent. Subject to the provisions of Section 6(a), the Agent, for the period specified in
the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable
state and federal laws, rules and regulations and the rules of the Nasdaq Capital Market (the “Exchange”), to
sell the Placement Shares up to the amount specified in, and otherwise in accordance with, the terms of such Placement Notice. The Agent
will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following
the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day,
the compensation payable by the Company to the Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as
defined below) payable to the Company, with an itemization of the deductions made by the Agent (as set forth in Section 6(b)) from
the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice, the Agent may sell Placement Shares
by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) of the Securities Act
Regulations, including sales made directly on or through the Exchange or any other existing trading market for the Ordinary Shares, in
negotiated transactions (with the prior written consent of the Company) at market prices prevailing at the time of sale or at prices related
to such prevailing market prices and/or any other method permitted by law. “Trading Day” means any day on which
the Ordinary Shares are traded on the Exchange.
5. Suspension
of Sales. The Company or the Agent may, upon notice to the other party in writing (including by email correspondence to each
of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any
of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable email correspondence
to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares (a “Suspension”);
provided, however, that such Suspension shall not affect or impair any party’s obligations with respect to any Placement
Shares sold hereunder prior to the receipt of such notice. While a Suspension is in effect, any obligation under Sections 8(l),
8(m), and 8(n) with respect to the delivery of certificates, opinions, or comfort letters to the Agent, shall be waived.
Each of the parties agrees that no such notice under this Section 5 shall be effective against any other party unless it is made
to one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time. Notwithstanding any other
provision of this Agreement, during any period in which the Company is in possession of material non-public information, the Company and
the Agent agree that (i) no sale of Placement Shares will take place, (ii) the Company shall not request the sale of any Placement Shares
and shall suspend or cancel any effective Placement Notices instructing the Agent to make any sales, and (iii) the Agent shall not be
obligated to sell or offer to sell any Placement Shares.
6. Sale
and Delivery to the Agent; Settlement.
(a) Sale
of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein
set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described
therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period
specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable law and regulations to sell such Placement Shares up to the amount specified, and otherwise in accordance with the terms
of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful in
selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or any other person or entity if it does
not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with
its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement
and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except
as otherwise agreed by the Agent and the Company.
(b) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares will
occur on the first (1st) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which
such sales are made (each, a “Settlement Date”). The Agent shall notify the Company of each sale of Placement
Shares no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales of Placement Shares
hereunder. The amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the
“Net Proceeds”) will be equal to the aggregate sales price received by the Agent, after deduction for (i) the
Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof, and
(ii) any transaction fees imposed by any Governmental Authority (as defined below) in respect of such sales.
(c) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer
the Placement Shares being sold by crediting the Agent’s or its designee’s account (provided the Agent shall have given the
Company and the other Agent written notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository Trust
Company through its Deposit and Withdrawal at Custodian system or by such other means of delivery as may be mutually agreed upon by the
parties hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement
Date, the Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement
Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver Placement Shares
on a Settlement Date, then in addition to and in no way limiting the rights and obligations set forth in Section 11(a) hereto,
it will (i) hold the Agent harmless against any loss, claim, damage, or expense (including reasonable and documented legal fees and expenses),
as incurred, arising out of or in connection with such default by the Company or its transfer agent (if applicable) through no fault of
the Agent and (ii) pay to the Agent any commission or other compensation to which it would otherwise have been entitled absent such default.
(d) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after giving
effect to the sale of such Placement Shares, such number or dollar amount of Placement Shares would exceed the lesser of (A) (a) the number
or dollar amount of Ordinary Shares registered on the effective Registration Statement (as defined below) pursuant to which the offering
is being made, (b) the number of authorized but unissued Ordinary Shares (less Ordinary Shares issuable upon exercise, conversion or exchange
of any outstanding securities of the Company or otherwise reserved from the Company’s share capital), (c) the number or dollar amount
of Ordinary Shares permitted to be sold under Form F-3 (including General Instruction I.B.5 thereof, if applicable) or (d) the number
or dollar amount of Ordinary Shares for which the Company has filed a Prospectus Supplement (as defined below) (the lesser of (a), (b),
and (d), the “Maximum Amount”), and (B) the amount authorized from time to time to be issued and sold under
this Agreement by the Company’s board of directors, a duly authorized committee thereof or a duly authorized executive committee,
and notified to the Agent in writing. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares
pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s board of directors,
a duly authorized committee thereof or a duly authorized executive committee. Notwithstanding anything to the contrary contained herein,
the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued
and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection
with such compliance.
7. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with the Agent that as of the date of this
Agreement and as of each Applicable Time (as defined below):
(a) Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements for and comply with
the applicable conditions set forth in Form F-3 (including General Instructions I.A and I.B) under the Securities Act. The Registration
Statement has been or will be filed with the Commission and has been declared effective by the Commission under the Securities Act prior
to the issuance of any Placement Notices by the Company. As of each Applicable Time, the Registration Statement is effective. The Prospectus
Supplement will name the Agent as the agent in the section entitled “Plan of Distribution.” The Company has not received,
and has no notice of, any order of the Commission preventing or suspending the use of the Registration Statement, or threatening or instituting
proceedings for that purpose. The Registration Statement and the offer and sale of Placement Shares as contemplated hereby meet the requirements
of Rule 415 under the Securities Act and comply in all material respects with said Rule. Any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration
Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and any amendments or supplements thereto
and all documents incorporated by reference therein that were furnished or filed with the Commission on or prior to the date of this Agreement
have been delivered, or are available through EDGAR, to the Agent and its counsel. The Company has not distributed and, prior to the later
to occur of each Settlement Date and completion of the distribution of the Placement Shares, will not distribute any offering material
in connection with the offering or sale of the Placement Shares other than the Registration Statement and the Prospectus and any Issuer
Free Writing Prospectus (as defined below) to which the Agent has consented. The Ordinary Shares are registered pursuant to Section 12(b)
of the Exchange Act and are currently listed on the Exchange under the trading symbol “PYPD.” The Company has taken no action
designed to, or likely to have the effect of, terminating the registration of the Ordinary Shares under the Exchange Act, delisting the
Ordinary Shares from the Exchange, nor has the Company received any notification that the Commission or the Exchange is contemplating
terminating such registration or listing. To the Company’s knowledge, it is in compliance with all applicable listing requirements
of the Exchange.
(b) No
Misstatement or Omission. The Registration Statement, when it became or becomes effective, and the Prospectus, and any amendment or
supplement thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with
the requirements of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will
conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes effective,
did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus and any amendment and supplement thereto, on the date thereof
and at each Applicable Time (as defined below), did not or will not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The
documents incorporated by reference in the Prospectus or any Prospectus Supplement did not, and any further documents filed and incorporated
by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material
fact required to be stated in such document or necessary to make the statements in such document, in light of the circumstances under
which they were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance
upon, and in conformity with, information furnished to the Company by the Agent in writing specifically for use in the preparation thereof,
the only such information furnished by the Agent to the Company consisting of “Agent’s Information” as defined below.
(c) Conformity
with the Securities Act and Exchange Act. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any amendment
or supplement thereto, and the documents incorporated by reference in the Registration Statement, the Prospectus or any amendment or supplement
thereto, when such documents were or are furnished or filed with the Commission under the Securities Act or the Exchange Act or became
or become effective under the Securities Act, as the case may be, conformed or will conform in all material respects with the requirements
of the Securities Act and the Exchange Act, as applicable.
(d) Financial
Information. The financial statements (including the related notes thereto) of the Company and its consolidated subsidiaries included
or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements
of the Securities Act and the Exchange Act, as applicable, and present fairly in all material respects the financial position of the Company
and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for
the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles in the
United States (“GAAP”) applied on a consistent basis throughout the periods covered thereby; and the other financial
information included or incorporated by reference in the Registration Statement and the Prospectus has been derived from the accounting
records of the Company and its consolidated subsidiaries and presents fairly in all material respects the information shown thereby; all
disclosures included or incorporated by reference in the Registration Statement and the Prospectus regarding “non-GAAP financial
measures” (as such term is defined by the rules and regulations of Commission) comply with Regulation G of the Exchange Act and
Item 10 of Regulation S-K of the Securities Act, to the extent applicable; and the pro forma financial information and the related notes
thereto included or incorporated by reference in the Registration Statement and the Prospectus have been prepared in accordance with the
applicable requirements of the Securities Act and the Exchange Act, as applicable, and the assumptions underlying such pro forma financial
information are reasonable and are set forth in the Registration Statement and the Prospectus.
(e) Conformity
with EDGAR Filing. The Prospectus delivered to the Agent for use in connection with the sale of the Placement Shares pursuant to this
Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via EDGAR, except
to the extent permitted by Regulation S-T.
(f) Organization.
The Company and each of its subsidiaries have been duly organized and are validly existing and in good standing under the laws of their
respective jurisdictions of organization (to the extent such concept is applicable in such jurisdiction), are duly qualified to do business
and are in good standing in each jurisdiction (to the extent such concept is applicable in such jurisdiction) in which their respective
ownership or lease of property or the conduct of their respective businesses as currently conducted requires such qualification, and have
all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or in good standing or have such power or authority would not reasonably be expected, individually
or in the aggregate, to have a material adverse effect on the business, properties, management, financial position, shareholders’
equity, results of operations or prospects of the Company and its subsidiaries taken as a whole or would materially and adversely affect
the ability of the Company to perform its obligations under this Agreement (a “Material Adverse Effect”). The
Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed
in Exhibit 8.1 to the Company’s most recent Annual Report on Form 20-F. The Company has not been designated as a “breaching
company” (within the meaning of the Israeli Companies Law, 5759-1999, as amended (including the rules and regulations promulgated
thereunder, the “Companies Law”)) by the Registrar of Companies of the State of Israel, nor has a proceeding
been instituted in Israel by the Registrar of Companies of the State of Israel for the dissolution of the Company. The amended and restated
articles of association and any other organizational documents of the Company comply with the requirements of applicable Israeli law and
are in full force and effect.
(g) Restrictions
on Subsidiary Payments to the Company. No subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement
or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution
on such subsidiary’s share capital or similar ownership interest, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the
Company.
(h) No
Violation or Default. Neither the Company nor any of its subsidiaries is (i) in violation of its articles of association, charter
or by-laws or other organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any property or asset of the Company or any of its subsidiaries is subject;
or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory
authority having jurisdiction over the Company or any of its subsidiaries except, in the case of clauses (ii) and (iii) above, for any
such default or violation that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(i) No
Material Adverse Change. Since the date of the most recent financial statements of the Company included or incorporated by reference
in the Registration Statement and the Prospectus, (i) there has not been any change in the share capital of the Company (other than the
grant of options and the issuance of Ordinary Shares upon exercise of options and warrants and settlement of restricted share units described
as outstanding in, and the grant of options and awards under existing equity incentive plans described in, and the issuance of Ordinary
Shares in contemplation of earnout periods under certain agreements of the Company described in, the Registration Statement and the Prospectus),
any material change in short-term debt or long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of
any kind declared, set aside for payment, paid or made by the Company on any class of share capital, or any material adverse change, or
any development that could reasonably be expected to result in a material adverse change in or affecting the business, properties, management,
financial position, shareholders’ equity, results of operations or prospects of the Company and its subsidiaries taken as a whole;
(ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course
of business) that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or
contingent, that is material, to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries
has sustained any loss or interference with its business that is material to the Company and its subsidiaries taken as a whole and that
is from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any
action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case as otherwise disclosed
in the Registration Statement and the Prospectus.
(j) Capitalization.
The Company has an authorized capitalization as set forth in the Registration Statement and the Prospectus under the heading “Capitalization.”
All of the outstanding shares of the Company have been duly authorized and validly issued, are fully paid and non-assessable and are not
subject to any pre-emptive or similar rights and were issued in compliance with all applicable laws, including the Companies Law and the
Israeli Securities Law, 5728-1968, as amended and the regulations promulgated thereunder (the “Israeli Securities Law”).
Except as described in or expressly contemplated by the Registration Statement and the Prospectus, there are no outstanding rights (including,
without limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any shares
or other equity interest in the Company or any of its subsidiaries, or any contract, commitment, agreement, understanding or arrangement
of any kind relating to the issuance of any share capital of the Company or any such subsidiary, any such convertible or exchangeable
securities or any such rights, warrants or options; the share capital of the Company conforms in all material respects to the description
thereof contained in the Registration Statement and the Prospectus; and, except as disclosed in the Registration Statement or the Prospectus,
all the outstanding shares or other equity interests of each subsidiary owned, directly or indirectly, by the Company have been duly authorized
and validly issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of any lien,
charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party.
(k) Directors.
All of the directors of the Company have been duly appointed in compliance with the Companies Law and the amended and restated articles
of association of the Company and any other organizational documents of the Company.
(l) No
Registration Rights. No person has the right to require the Company or any of its subsidiaries to register any securities for sale
under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Placement
Shares.
(m) The
Ordinary Shares. The Placement Shares to be issued and sold by the Company hereunder have been duly authorized by the Company and,
when issued and delivered and paid for as provided herein, will be duly and validly issued, fully paid and nonassessable and will conform
in all material respects to the descriptions thereof in the Registration Statement and the Prospectus; and the issuance of the Placement
Shares is not subject to any preemptive or similar rights.
(n) Authorization.
The Company has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and all
action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation
by it of the transactions contemplated hereby has been duly and validly taken.
(o) No
Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Placement Shares
by the Company and the consummation of the transactions contemplated by this Agreement and the Prospectus will not (i) conflict with or
result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the termination, modification
or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property, right or asset of the
Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any
property, right or asset of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the articles
of association, charter or by-laws or other organizational documents of the Company or any of its subsidiaries or (iii) result in the
violation of any law or statute applicable to the Company or any of its subsidiaries or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority having jurisdiction over the Company or any of its subsidiaries, except, in
the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, or as otherwise waived.
(p) Authority.
The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement. All
corporate approvals on the part of the Company, including, to the extent applicable, under Chapter 5 of Part VI of the Companies Law,
for the execution and delivery by the Company of this Agreement, the offer, issuance and sale of the Placement Shares and the performance
of the Company’s obligations hereunder have been obtained. This Agreement has been duly authorized, executed and delivered by the
Company. No consent, approval, authorization, order, registration or qualification of or with any Governmental Authority is required for
the execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Placement Shares and the consummation
of the transactions contemplated by this Agreement, except for (i) the registration of the Placement Shares under the Securities Act,
(ii) such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or made prior to the date
of this Agreement and remain in full force and effect, and (iii) such consents, approvals, authorizations, orders and registrations or
qualifications as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”) and under applicable
state securities laws in connection with the purchase and distribution of the Placement Shares by the Agent.
(q) Absence
of Proceedings. Except as described in the Registration Statement and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings (“Actions”) pending
to which the Company or any of its subsidiaries is or may reasonably be expected to become a party or to which any property of the Company
or any of its subsidiaries is or may reasonably be expected to become subject that, individually or in the aggregate, if determined adversely
to the Company or any of its subsidiaries, could reasonably be expected to have a Material Adverse Effect; to the knowledge of the Company,
no such Actions are threatened or contemplated by any Governmental Authority or threatened by others; and (i) there are no current or
pending Actions that are required under the Securities Act to be described in the Registration Statement or the Prospectus that are not
so described in the Registration Statement and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents
that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement
or the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration Statement and the Prospectus.
(r) Regulatory
Filings. Neither the Company nor any of its subsidiaries has failed to file with the applicable Governmental Authority, any required
filing, declaration, listing, registration, report or submission, excluding any such filing, declaration, listing, registration, report
or submission to the U.S. Food and Drug Administration (“FDA”) or similar authority in any other jurisdiction,
except for such failures that could not, individually or in the aggregate, have a Material Adverse Effect. All such filings, declarations,
listings, registrations, reports or submissions were in compliance with applicable laws when filed and no deficiencies have been asserted
by any applicable Governmental Authority with respect to any such filings, declarations, listings, registrations, reports or submissions,
except for any deficiencies that could not, individually or in the aggregate, have a Material Adverse Effect.
(s) Compliance
with Health Care Laws. The Company and its subsidiaries are, and during the last three years have been, in compliance, and have taken
any required and necessary actions to comply, with all Health Care Laws, except where noncompliance would not singly or in the aggregate
reasonably be expected to result in a Material Adverse Effect. For purposes of this Agreement, “Health Care Laws” means
all health care laws applicable to the Company or any of its subsidiaries, including, but not limited to: the Federal Food, Drug, and
Cosmetic Act, the U.S. Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a),
the U.S. Physician Payment Sunshine Act (42 U.S.C. § 1320a-7h), the U.S. Civil False Claims Act (31 U.S.C. Section 3729 et seq.),
the criminal False Claims Act (42 U.S.C. § 1320a-7b(a)), all criminal laws relating to health care fraud and abuse, including but
not limited to 18 U.S.C. Sections 286 and 287, and the health care fraud criminal provisions under the U.S. Health Insurance Portability
and Accountability Act of 1996 (“HIPAA”) (42 U.S.C. Section 1320d et seq.), the exclusion laws (42 U.S.C. §
1320a-7), HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.),
Medicare (Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social Security Act), and any and all other similar state,
local, federal or foreign (including Israeli) health care laws and the regulations promulgated pursuant to such laws, including, without
limitation, the FDA’s current good manufacturing practice regulations at 21 CFR Part 820 and all other laws and regulations applicable
to ownership, testing, development, manufacture, packaging, processing, use, distribution, storage, import, export or disposal of the
Company’s or any of its subsidiaries’ products, each as amended from time to time. Neither the Company nor any of its subsidiaries
has received any Form 483, notice of adverse finding, warning letter, untitled letter or other correspondence or notice from the FDA,
or written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any Governmental
Authority alleging a material violation of any Health Care Laws, and, to the Company’s knowledge, no such claim, action, suit, proceeding,
hearing, enforcement, investigation, arbitration or other action is threatened. Neither the Company nor any of its subsidiaries is a party
to or has ongoing reporting obligations pursuant to any corporate integrity agreements, deferred prosecution agreements, monitoring agreements,
consent decrees, settlement orders, plans of correction or similar agreements with or imposed by any Governmental Authority. Additionally,
neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any of its or its subsidiaries’ employees,
officers or directors has been excluded, suspended or debarred from participation in any U.S. federal health care program or human research
study or clinical trial or, to the knowledge of the Company, is subject to an inquiry, investigation, proceeding, or other similar action
by any Governmental Authority that could reasonably be expected to result in debarment, suspension, or exclusion.
(t) Intellectual
Property. (i) The Company and its subsidiaries own (free and clear of all liens, security interests or encumbrances, other than licenses
or other grants of rights to use Intellectual Property), or have a license to, all patents, patent applications, patent rights, trademarks,
service marks, trade names, trademark registrations, service mark registrations, domain names and other source indicators, copyrights
and copyrightable works, know-how, trade secrets, systems, procedures, proprietary or confidential information and all other worldwide
intellectual property, industrial property and proprietary rights (collectively, “Intellectual Property”) currently
used in the conduct of their respective businesses (except where such failure to own or possess such rights would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect) and all issued or registered Intellectual Property that is owned
by the Company or its subsidiaries is subsisting, and to the knowledge of the Company, valid and enforceable (except where such failure
to be subsisting, valid or enforceable would not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect); (ii) the Company’s and its subsidiaries’ conduct of their respective businesses does not infringe, misappropriate
or otherwise violate any Intellectual Property or contractual rights of any person, except as would not be reasonably expected, individually,
or in the aggregate, to have a Material Adverse Effect; (iii) the Company and its subsidiaries have not received any written notice of
any claim relating to Intellectual Property, which claim, if determined adversely to the Company or its subsidiaries, would reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect; (iv) to the knowledge of the Company, no Intellectual
Property that is owned by the Company or its subsidiaries and material to the conduct of the Company’s or its subsidiaries’
respective businesses is being infringed, misappropriated or otherwise violated by any person; (v) except as described in the Registration
Statement and the Prospectus, there are no Actions pending, or to the knowledge of the Company, threatened against the Company or its
subsidiaries relating to Intellectual Property that, if determined adversely to the Company or its subsidiaries, would reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; (vi) the Company and its subsidiaries have complied in all material
respects with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company or its subsidiaries,
as applicable, except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and, to
the Company’s knowledge, all such agreements are in full force and effect; and (vii) the Company and its subsidiaries take reasonable
steps (x) to protect, maintain and safeguard trade secrets and confidential information included in their Intellectual Property and (y)
to require all of their current employees and contractors (A) with access to trade secrets and confidential information to execute non-disclosure
and confidentiality agreements and/or provisions with the Company or its subsidiaries, as applicable, and (B) who have been involved in
the creation, invention or development of material Intellectual Property for or on behalf of the Company or its subsidiaries to assign
in writing to the Company or its subsidiaries, as applicable, all of their rights therein.
(u) Clinical
Trials. The research studies and trials conducted by, on behalf of, or sponsored by, the Company that are described in the Registration
Statement or the Prospectus were and, if still pending, are being, conducted in all material respects in accordance with all applicable
Health Care Laws; the Company has no knowledge of any research studies or clinical trials not described in the Registration Statement
and the Prospectus the results of which reasonably call into question in any material respect the results of the research studies and
clinical trials described in the Registration Statement or Prospectus; and the Company has not received any written notices or correspondence
from the FDA or any other foreign (including Israeli), state or local Governmental Authority exercising comparable authority or any institutional
review board or comparable authority requiring or threatening the premature termination, suspension, material modification or clinical
hold of any research studies or trials conducted by or on behalf of, or sponsored by, the Company that are described in the Registration
Statement or the Prospectus, and, to the Company’s knowledge, there are no reasonable grounds for the same.
(v) Market
Capitalization. At the time the Registration Statement was or will be originally declared effective, and at the time the Company’s
most recent Annual Report on Form 20-F was filed with the Commission, the Company met or will meet the then applicable requirements for
the use of Form F-3 under the Securities Act, including, but not limited to, General Instruction I.B.1/I.B.5 of Form F-3. The Company
is not a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar months
previously and if it has been a shell company at any time previously, has filed current Form 10 information (as defined in Instruction
I.B.5 of Form F-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a shell company.
(w) No
Material Defaults. Neither the Company nor any of the subsidiaries has defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would have a Material Adverse Effect.
The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its last Annual Report on
Form 20-F, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred shares or (ii) has defaulted
on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually or
in the aggregate, would have a Material Adverse Effect.
(x) Certain
Market Activities. Neither the Company nor any of its subsidiaries or affiliates has taken, directly or indirectly, any action designed
to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Placement Shares.
In addition, neither the Company nor any of its subsidiaries has engaged in any form of solicitation, advertising or other action constituting
an offer or a sale under the Israeli Securities Law in connection with the transactions contemplated hereby which would require the publication
of a prospectus in the State of Israel under the laws of the State of Israel.
(y) No
Reliance. The Company has not relied upon the Agent or legal counsel for the Agent for any legal, tax or accounting advice in connection
with the offering and sale of the Placement Shares.
(z) No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries, on
the one hand, and the directors, officers, shareholders, customers, suppliers or other affiliates of the Company or any of its subsidiaries,
on the other, that is required by the Securities Act to be described in each of the Registration Statement and the Prospectus and that
is not so described in such documents.
(aa) Taxes. (i) The
Company and its subsidiaries have paid all national, regional, local and other taxes and assessments (including any interest and penalties
due and payable thereon) required to be paid, and timely filed all income and other tax returns required to be filed through the date
hereof, except to the extent that the failure to so pay or file would not reasonably be expected to result in a Material Adverse Effect;
(ii) except as otherwise disclosed in each of the Registration Statement and the Prospectus, there is no tax deficiency that has been,
or would reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of their respective properties,
income or assets, except for any tax deficiency being contested in good faith (provided that appropriate reserves have been established
therefor in accordance with GAAP) or which would not reasonably be expected to result in a Material Adverse Effect, (iii) each of the
Company and its subsidiaries are and have at all times been resident for tax purposes in their jurisdiction of incorporation and are not
and have not been treated as resident in any other jurisdiction for any tax purpose (including any double taxation arrangement) and no
written claim has been made by any Governmental Authority that the Company or its subsidiaries are or may be subject to tax or required
to file a tax return in a jurisdiction where it does not file tax returns, and (iv) assuming that the Agent is not otherwise subject to
taxation in Israel due to Israeli tax residence or the existence of a permanent establishment of the Agent in Israel or as a result of
any present or former connection (other than any resulting solely from the transactions contemplated by this Agreement), then no capital
gains, income, withholding or other taxes are payable by or on behalf of the Agent to the State of Israel or to any political subdivision
or authority thereof or therein in connection with the issuance, sale and delivery of the Placement Shares by the Company, and the execution
and delivery of this Agreement or any other document to be furnished hereunder.
(bb) Stamp Taxes.
Except as described in the Prospectus, no transaction, documentary, stamp, issue, transfer, registration or other similar taxes or duties
(“Stamp Taxes”) are payable by or on behalf of the Agent in Israel or the United States or any political subdivision
or taxing authority thereof or therein on or in connection with (i) the issuance, sale or placement of the Placement Shares in the manner
contemplated by this Agreement, (ii) any purchase by the Agent of the Placement Shares in the manner contemplated by this Agreement, (iii)
the resale and delivery by the Agent of Placement Shares in the manner contemplated by this Agreement, (iv) the holding or transfer of
the Placement Shares by the Agent or (v) the execution and delivery of this Agreement and the consummation of any of the other transactions
contemplated hereby.
(cc) No Approvals Required
and No Distribution Taxes. Except as disclosed in the Registration Statement and the Prospectus, (i) no approvals are currently required
in Israel in order for (x) the Company to pay dividends or other distributions declared by the Company to the holders of Ordinary Shares
or (y) the subsidiaries of the Company to pay dividends or other distributions declared by such subsidiary to the Company; and (ii) under
current laws and regulations of Israel and any political subdivision thereof, any amounts payable with respect to the Placement Shares
upon liquidation of the Company or upon redemption thereof and dividends and other distributions declared and payable on the share capital
of the Company may be paid by the Company in United States dollars and freely transferred out of Israel, and no such payments made to
the holders thereof or therein who are non-residents of Israel will be subject to income, withholding or other taxes under laws and regulations
of Israel or any political subdivision or taxing authority thereof or therein and will otherwise be free and clear of any other tax, duty,
withholding or deduction in Israel or any political subdivision or taxing authority thereof or therein and without the necessity of obtaining
any governmental authorization in Israel or any political subdivision or taxing authority thereof or therein.
(dd) Licenses and Permits.
The Company and its subsidiaries possess all licenses, sub-licenses, certificates, clearances, exemptions, permits, registrations and
other authorizations (collectively, “Governmental Licenses”) issued by, and have made all declarations and filings
with, the appropriate Governmental Authorities that are necessary for the ownership or lease of their respective properties or the conduct
of their respective businesses as described in each of the Registration Statement and the Prospectus, except where the failure to possess
or make the same would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and except as
described in each of the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has received notice
of any revocation or modification of any such Governmental License or has any reason to believe that any such Governmental License will
not be renewed in the ordinary course, except where such revocation or modification or the failure to renew the same would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect.
(ee) Israeli Tax Benefits.
The Company has not received or been granted any tax rulings by any Israeli Governmental Authority, including with respect to any “Approved
Enterprise,” “Benefited Enterprise,” “Preferred Enterprise,” “Preferred Technological Enterprise”
or “Special Preferred Technological Enterprise” status or benefits (collectively, “Tax Incentive Program”),
and by Israeli laws and regulations and has not made any claims for tax benefits relating to any Tax Incentive Program.
(ff) Ownership of Assets.
Except as disclosed in the Registration Statement or the Prospectus, the Company and its subsidiaries have good and marketable title to,
or have valid rights to lease or otherwise use, all items of real and personal property that are material to the respective businesses
of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title
except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries
or (ii) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(gg) Compliance with Environmental
Laws. (i) The Company and its subsidiaries (x) are in compliance with all, and have not violated any, applicable federal, state, local
and foreign (including Israeli) laws (including common law), rules, regulations, requirements, decisions, judgments, decrees, orders and
other legally enforceable requirements relating to pollution or the protection of human health or safety, the environment, natural resources,
hazardous or toxic substances or wastes, including biohazardous and medical waste, pollutants or contaminants (collectively, “Environmental
Laws”); (y) have received and are in compliance with all, and have not violated any, permits, licenses, certificates or
other authorizations or approvals required of them under any Environmental Laws to conduct their respective businesses; and (z) have not
received notice of any actual or potential liability or obligation under or relating to, or any actual or potential violation of, any
Environmental Laws, including for the investigation or remediation of any use, disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, or relating to human exposure to hazardous or toxic substances or wastes and have no knowledge of
any event or condition that would reasonably be expected to result in any such notice, and (ii) there are no costs or liabilities associated
with Environmental Laws of or relating to the Company or its subsidiaries, except in the case of each of (i) and (ii) above, for any such
matter as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described
in the Prospectus, (x) there is no proceeding that is pending, or to the knowledge of the Company, contemplated, against the Company or
any of its subsidiaries under any Environmental Laws in which a Governmental Authority is also a party, other than such proceeding regarding
which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) the Company and its subsidiaries are not
aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws
or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a material
adverse effect on the capital expenditures, earnings or competitive position of the Company and its subsidiaries, and (z) none of the
Company or its subsidiaries anticipates material capital expenditures relating to any Environmental Laws.
(hh) Hazardous Materials.
There has been no storage, generation, transportation, use, handling, treatment, Release or threat of Release of Hazardous Materials by,
relating to or caused by the Company or any of its subsidiaries (or, to the knowledge of the Company and its subsidiaries, any other entity
(including any predecessor) for whose acts or omissions the Company or any of its subsidiaries is or could reasonably be expected to be
liable) at, on, under or from any property or facility now or previously owned, operated or leased by the Company or any of its subsidiaries,
or at, on, under or from any other property or facility, in violation of any Environmental Laws or in a manner or amount or to a location
that could reasonably be expected to result in any liability under any Environmental Laws, except for any violation or liability which
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Hazardous Materials”
means any material, chemical, substance, waste (including biohazardous and medical waste), pollutant, contaminant, compound, mixture,
or constituent thereof, in any form or amount, including petroleum (including crude oil or any fraction thereof) and petroleum products,
natural gas liquids, asbestos and asbestos containing materials, naturally occurring radioactive materials, brine, and drilling mud, regulated
or which can give rise to liability under any Environmental Law. “Release” means any spilling, leaking, seepage, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in,
into or through the environment, or in, into from or through any building or structure.
(ii) Internal
Controls. The Company and its subsidiaries taken as a whole maintain systems of “internal control over financial reporting”
(as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act that are applicable to the Company
and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons
performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with GAAP. The Company and its subsidiaries taken as a whole maintain internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general
or specific authorization; (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; and (v) interactive data in extensible Business Reporting Language included
or incorporated by reference in the Registration Statement and the Prospectus fairly presents the information called for in all material
respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto in all material respects. Based
on the Company’s most recent evaluation of its internal controls over financial reporting pursuant to Rule 13a-15(c) of the Exchange
Act, except as disclosed in the Registration Statement and the Prospectus, there are no material weaknesses in the Company’s internal
controls. The Company’s auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all
significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which have adversely
affected or are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information;
and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s
internal controls over financial reporting.
(jj) Independent Accountants.
Kost, Forer, Gabbay & Kasierer, a member firm of Ernst & Young Global, who has certified certain financial statements of the Company
and its subsidiaries, is an independent registered public accounting firm with respect to the Company and its subsidiaries within the
applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required
by the Securities Act.
(kk) Disclosure Controls.
The Company and its subsidiaries maintain “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange
Act) that comply with the applicable requirements of the Exchange Act and that have been designed to ensure that information required
to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported
within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that
such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding
required disclosure.
(ll) Sarbanes-Oxley.
Except as otherwise disclosed in the Company’s Annual Report on Form 20-F for the year ended December 31, 2023, there is no failure
on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply with any applicable
provision of the Sarbanes-Oxley Act of 2002, as amended and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(mm) No Brokers or Finders.
Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against the Company
or any of its subsidiaries or the Agent for a brokerage commission, finder’s fee or like payment in connection with the offering
and sale of the Placement Shares.
(nn) Labor Matters.
No labor disturbance by or dispute with employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company,
is contemplated or threatened, and the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the employees
of any of its or its subsidiaries’ principal suppliers, contractors or customers, except as would not reasonably be expected to
have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice of cancellation or termination
with respect to any collective bargaining agreement to which it is a party. The Company and its subsidiaries are in compliance with the
labor and employment laws, collective bargaining agreements and extension orders applicable to their employees, except where the failure
to be so in compliance has not had and would not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect. All obligations of the Company to provide statutory severance pay to all of its currently engaged employees in Israel (“Israeli
Employees”) are in accordance with Section 14 of the Israeli Severance Pay Law, 5723-1963 (the “Severance Pay
Law”) and are fully funded or are accrued on the financial statements of the Company, and all such employees have been subject
to the provisions of Section 14 of the Severance Pay Law with respect to their entire salary, as defined under the Severance Pay Law,
from the date of commencement of their employment with the Company, and the Company has been in full compliance with the requirements
for a “Section 14 Arrangement” with respect to severance pay with respect to 100% of such salary for which severance pay may
be due under the Severance Pay Law; and all amounts that the Company is required by contract or applicable law either (A) to deduct from
Israeli Employees’ salaries or to transfer to such Israeli Employees’ pension or provident, life insurance, incapacity insurance,
advance study fund or other similar funds or insurance or (B) to withhold from its Israeli Employees’ salaries and benefits and
to pay to any Israeli Governmental Authority as required by applicable Israeli tax law, have, in each case, been duly deducted, transferred,
withheld and paid, and the Company has no outstanding obligation to make any such deduction, transfer, withholding or payment.
(oo) Investment
Company Act. The Company is not and, after giving effect to the offering and sale of the Placement Shares and the application of the
proceeds therefor as described in the Registration Statement and the Prospectus, will not be required to register as an “investment
company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company
Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment Company
Act”).
(pp) Anti-Bribery.
Neither the Company nor any of its subsidiaries nor any director or officer of the Company or any of its subsidiaries nor, to the knowledge
of the Company, any employee, agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries
has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity;
(ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to
any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a
public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political
party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials
in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom or any other applicable
anti-bribery or anti-corruption law, including, without limitation, Sections 291 and 291A of the Israel Penal Law, 5737-1977, and the
rules and regulations thereunder; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other
unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment
or benefit. The Company and its subsidiaries have instituted, maintained and enforced, and will continue to maintain and enforce policies
and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(qq) Compliance with Anti-Money
Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the Israel Prohibition on Money Laundering Law, 5760-2000, the Israel Prohibition on Money Laundering Order, 5761-2001, and the
Israel Counter-Terrorism Law, 5776-2016, all as amended, and the applicable money laundering statutes of all jurisdictions where the Company
or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines
issued, administered or enforced by any governmental or regulatory agency (collectively, the “Anti-Money Laundering Laws”)
and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(rr) Sales Agreements.
The Company is not a party to any agreement with an agent or underwriter for any other “at the market” or continuous equity
transaction.
(ss) ERISA and Employee
Benefits Matters. (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”), whether or not subject to ERISA, for which the Company or any member of its “Controlled
Group” (defined as any entity, whether or not incorporated, that is under common control with the Company within the meaning of
Section 4001(a)(14) of ERISA or any entity that would be regarded as a single employer with the Company under Section 414(b), (c), (m)
or (o) of the Code would have any liability (each, a “Plan”) has been maintained in compliance with its terms
and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (ii)
no non-exempt prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect
to any Plan subject to such rules; (iii) no Plan has failed (whether or not waived), or is reasonably expected to fail, to satisfy the
minimum funding standards required by applicable law, including Section 302 of ERISA or Section 412 of the Code; (iv) no Plan is, or is
reasonably expected to be, in “at risk status” (within the meaning of Section 303(i) of ERISA) and no Plan that is a “multiemployer
plan” within the meaning of Section 4001(a)(3) of ERISA is in “endangered status” or “critical status” (within
the meaning of Sections 304 and 305 of ERISA) (v) the fair market value of the assets of each Plan required to be funded exceeds the present
value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan); (vi) no “reportable
event” (within the meaning of Section 4043(c) of ERISA and the regulations promulgated thereunder) has occurred or is reasonably
expected to occur with respect to a Plan that is subject to such rules; (vii) each Plan that is intended to be qualified under Section
401(a) of the Code is so qualified, and nothing has occurred, whether by action or by failure to act, which would cause the loss of such
qualification; (viii) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability
under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guarantee Corporation, in the ordinary
course and without default) in respect of a Plan (including a “multiemployer plan” within the meaning of Section 4001(a)(3)
of ERISA); (ix) none of the Company and its subsidiaries has received notice from a governmental or regulatory authority relating to the
intention to terminate any Plan or to appoint a trustee or similar official to administer any Plan or alleging the insolvency of any Plan,
and (x) none of the following events has occurred or is reasonably likely to occur: (A) a material increase in the aggregate amount of
contributions required to be made to all Plans by the Company or its Controlled Group affiliates in the current fiscal year of the Company
and its Controlled Group affiliates compared to the amount of such contributions made in the Company’s and its Controlled Group
affiliates’ most recently completed fiscal year; or (B) a material increase in the Company and its subsidiaries’ “accumulated
post-retirement benefit obligations” (within the meaning of Accounting Standards Codification Topic 715-60) compared to the amount
of such obligations in the Company and its subsidiaries’ most recently completed fiscal year, except in each case with respect to
the events or conditions set forth in (i) through (ix) hereof, as would not, individually or in the aggregate, have a Material Adverse
Effect.
(tt) Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included in
the Registration Statement or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in
good faith.
(uu) Margin Rules.
Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company as described
in each of the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System or any other regulation of such Board of Governors.
(vv) Insurance. The
Company and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, which insurance
is in amounts and insures against such losses and risks as the Company reasonably believes are adequate to protect the Company and its
subsidiaries and their respective businesses as currently conducted; and neither the Company nor any of its subsidiaries has (i) received
notice from any insurer or agent of such insurer that material capital improvements or other expenditures are required or necessary to
be made in order to continue such insurance or (ii) 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 at reasonable cost from similar insurers as may be necessary to continue
its business.
(ww) No Conflict with
Sanctions Laws. Neither the Company nor any of its subsidiaries, directors, officers or employees nor, to the knowledge of the Company,
any agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries is currently the subject
or target of any sanctions administered or enforced by the U.S. government (including, without limitation, the Office of Foreign Assets
Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a
“specially designated national” or “blocked person”) the United Nations Security Council, the European Union,
His Majesty’s Treasury or other relevant sanctions authority or a resident or incorporated or engaged in a business in an “Enemy
State” pursuant to the Israeli Trade with the Enemy Ordinance, 1939 (collectively, “Sanctions”), nor is
the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions,
including, without limitation, the Crimea Region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s
Republic, Cuba, Iran, North Korea and Syria (each, a “Sanctioned Country”); and the Company will not directly
or indirectly use the proceeds of the offering of the Placement Shares hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with
any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities
of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person
participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past ten years, the Company
and its subsidiaries and predecessors have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions
with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned
Country.
(xx) Status
Under the Securities Act. The Company is not an “ineligible issuer,” and is not a well-known seasoned issuer, in each
case, as defined in Rule 405 under the Securities Act. The Company is a “foreign private issuer” as defined in Rule 405 under
the Securities Act. The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act or
will pay such fee within the time period required by such rule (without giving effect to the proviso therein) and in any event prior to
the filing of the Prospectus relating to the Placement Shares.
(yy) No Misstatement or
Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and as of each Applicable
Time, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained
in the Registration Statement or the Prospectus, including any incorporated document deemed to be a part thereof that has not been superseded
or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and
in conformity with Agent’s Information.
(zz) Statistical Information.
Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and market-related data included
in each of the Registration Statement and the Prospectus is not based on or derived from sources that are reliable and accurate in all
material respects.
(aaa) Cybersecurity.
The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently
conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company
and its subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls, policies,
procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy
and security of all IT Systems and data, including all “Personal Data” (as defined below) and all sensitive, confidential
or regulated data (“Confidential Data”) used in connection with their businesses. “Personal Data”
means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax identification
number, driver’s license number, passport number, credit card number, bank information, or customer or account number; (ii) any
information which would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended;
(iii) “personal data” as defined by GDPR (as defined below); (iv) any information which would qualify as “protected
health information” under the Health Insurance Portability and Accountability Act of 1996, as amended by HIPAA; (v) any “personal
information” as defined by the California Consumer Privacy Act (“CCPA”); and (vi) any other piece of information
that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any data related
to an identified person’s health or sexual orientation. There have been no breaches, violations, outages or unauthorized uses of
or accesses to same, except for those that have been remedied without material cost or liability or the duty to notify any other person,
nor any incidents under internal review or investigations relating to the same. The Company and its subsidiaries are presently in material
compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any Governmental Authority, internal
policies and contractual obligations relating to the privacy and security of IT Systems, Confidential Data, and Personal Data and to the
protection of such IT Systems, Confidential Data, and Personal Data from unauthorized use, access, misappropriation or modification.
(bbb) Compliance with
Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable state
and federal data privacy and security laws and regulations, including without limitation HIPAA, CCPA, the Israeli Protection of Privacy
Law, 5741-1981, the Israeli Privacy Protection Regulations, Information Security, 5777-2017, the Israeli Patient’s Rights Law, 5756-1996,
and the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy
Laws”). To ensure compliance with the Privacy Laws, the Company and its subsidiaries have in place, comply with, and take
appropriate steps to ensure compliance in all material respects with their policies and procedures relating to data privacy and security
and the collection, storage, use, processing, disclosure, handling, and analysis of Personal Data and Confidential Data (the “Policies”).
The Company has at all times made all disclosures to users or customers required by applicable laws and regulatory rules or requirements,
and none of such disclosures made or contained in any Policy have been inaccurate or in violation of any applicable laws and regulatory
rules or requirements in any material respect. The Company further certifies that neither it nor any of its subsidiaries: (i) has received
notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has
no knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently conducting or
paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a
party to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law.
(ccc) Compliance with
Laws. The Company and each of its subsidiaries holds, and is operating in compliance in all material respects with, all franchises,
grants, authorizations, licenses, permits, easements, consents, certificates and orders of any Governmental Authority, (self-)regulatory
body or designated organization required for the conduct of its business and all such franchises, grants, authorizations, licenses, permits,
easements, consents, certifications and orders are valid and in full force and effect; and neither the Company nor any of its subsidiaries
has received notice of any revocation or modification of any such franchise, grant, authorization, license, permit, easement, consent,
certification or order or has reason to believe that any such franchise, grant, authorization, license, permit, easement, consent, certification
or order will not be renewed in the ordinary course. The Company and each of its subsidiaries is in compliance in all material respects
with all applicable federal, state, local and foreign (including Israeli) laws, regulations, orders and decrees. The Company maintains
policies and has implemented procedures reasonably designed to keep it and its officers, directors and employees (while acting for the
Company) in material compliance with all such laws, regulations, orders and decrees.
(ddd) Stock Options.
With respect to the share options and other equity incentive awards (the “Stock Options”) granted pursuant to
the share-based compensation plans of the Company and its subsidiaries (the “Company Stock Plans”), (i) each
Stock Option intended to qualify for the “capital gains track” of Section 102 of the Israeli Tax Ordinance – (New Version),
1961 so qualifies, (ii) each grant of a Stock Option was duly authorized no later than the date on which the grant of such Stock Option
was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the board of directors of the
Company (or a duly constituted and authorized committee thereof) and any required shareholder approval, and the award agreement governing
such grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant was made in accordance with the terms
of the Company Stock Plans, the Exchange Act and all other applicable laws and regulatory rules or requirements, including the rules of
the Exchange and any other exchange on which Company securities are traded, and (iv) each such grant was properly accounted for in accordance
with GAAP in the financial statements (including the related notes) of the Company and disclosed in the Company’s filings with the
Commission in accordance with the Exchange Act and all other applicable laws. The Company has not knowingly granted, and there is no and
has been no policy or practice of the Company of granting, Stock Options prior to, or otherwise coordinating the grant of Stock Options
with, the release or other public announcement of material information regarding the Company or its subsidiaries or their results of operations
or prospects.
(eee) Extensible Business
Reporting Language. The interactive data in extensible Business Reporting Language included or incorporated by reference in the Registration
Statement and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with
the Commission’s rules and guidelines applicable thereto in all material respects.
(fff) Ratings. There
are no (and prior to each Settlement Date, will be no) debt securities, convertible securities or preferred shares issued or guaranteed
by the Company or any of its subsidiaries that are rated by a “nationally recognized statistical rating organization,” as
such term is defined in Section 3(a)(62) under the Exchange Act.
(ggg) Grants. Except
as disclosed in Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has received any funding, grants
or subsidies from or on behalf of or under the authority of the Israel Innovation Authority of the Israeli Ministry of Economy and Industry,
the Authority for Investment and Development of Industry and the Economy of the State of Israel of the Israeli Ministry of Economy and
Industry, any other governmental or regulatory agency or authority or any bi- or multi-national grant program, framework or foundation
and the Company and each of its subsidiaries is in compliance with the terms and conditions of all such funding, grants or subsidies in
all material respects and none of the Company or any of its subsidiaries has received any notice denying, revoking or adversely modifying
any such funding, grants or subsidies or the terms thereof.
(hhh) Valid Choice of
Law; Enforceability. The choice of laws of the State of New York as the governing law of this Agreement is a valid choice of law under
the laws of the State of Israel. The Company has the power to submit, and pursuant to Section 19 of this Agreement, has legally, validly,
effectively and irrevocably submitted, to the personal jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan,
The City of New York (each, a “New York Court”), and the Company has the power to designate, appoint and authorize,
and pursuant to Section 19 of this Agreement, has legally, validly, effectively and irrevocably designated, appointed and authorized an
agent for service of process in any action arising out of or relating to this Agreement or the transactions contemplated hereby in any
New York Court, and service of process effected on such authorized agent will be effective to confer valid personal jurisdiction over
the Company as provided in Section 19 hereof.
Any certificate signed by
an officer of the Company and delivered to the Agent or to counsel for the Agent pursuant to or in connection with this Agreement shall
be deemed to be a representation and warranty by the Company, as applicable, to the Agent as to the matters set forth therein.
8. Covenants
of the Company. The Company covenants and agrees with the Agent that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement Shares
is required to be delivered by the Agent under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act or similar rule), (i) the Company will notify the Agent promptly of the time when any subsequent
amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission and/or has
become effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any amendment
or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare and file with the
Commission, promptly upon the Agent’s request, any amendments or supplements to the Registration Statement or Prospectus that, in
the Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares by the
Agent (provided, however, that the failure of the Agent to make such request shall not relieve the Company of any obligation
or liability hereunder, or affect the Agent’s right to rely on the representations and warranties made by the Company in this Agreement
and provided, further, that the only remedy the Agent shall have with respect to the failure to make such filing shall be
to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the Company will not file any amendment
or supplement to the Registration Statement or Prospectus relating to the Placement Shares or a security convertible into the Placement
Shares unless a copy thereof has been submitted to the Agent within a reasonable period of time before the filing and the Agent have not
objected thereto (provided, however, that the failure of the Agent to make such objection shall not relieve the Company
of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations and warranties made by the
Company in this Agreement and provided, further, that the only remedy the Agent shall have with respect to the failure by
the Company to obtain such consent shall be to cease making sales under this Agreement) and the Company will furnish to the Agent at the
time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into the Registration Statement
or Prospectus, except for those documents available via EDGAR; and (iv) the Company will cause each amendment or supplement to the Prospectus
to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act or, in the case
of any document to be incorporated by reference therein, to be furnished or filed with the Commission as required pursuant to the Exchange
Act, within the time period prescribed (the determination to file or not file any amendment or supplement with the Commission under this
Section 8(a), based on the Company’s reasonable opinion or reasonable objections, shall be made exclusively by the Company).
(b) Notice
of Commission Stop Orders. The Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof, of the
issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agent promptly after it receives
any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any
Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Shares or for additional information
related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered
by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares, (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act or similar rule), the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and file on or before their respective due dates all reports and
any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c),
14, 15(d) or any other provision of or under the Exchange Act. If the Company has omitted any information from the Registration Statement
pursuant to Rule 430B under the Securities Act, it will use its best efforts to comply with the provisions of and make all requisite filings
with the Commission pursuant to said Rule 430B and to notify the Agent promptly of all such filings. If during such period any event occurs
as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during
such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company
will promptly notify the Agent to suspend the offering of Placement Shares during such period and the Company will promptly amend or supplement
the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) Listing
of Placement Shares. Prior to the date of the first Placement Notice, the Company will use its reasonable best efforts to cause the
Placement Shares to be listed on the Exchange.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to the Agent and their counsel (at the expense of the Company)
copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus relating
to the Placement Shares is required to be delivered under the Securities Act (including all documents furnished or filed with the Commission
during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and in such
quantities as the Agent may from time to time reasonably request and, at the Agent’s request, will also furnish copies of the Prospectus
to each exchange or market on which sales of the Placement Shares may be made; provided, however, that the Company shall not be required
to furnish any document (other than the Prospectus) to the Agent to the extent such document is available on EDGAR.
(f) Earnings
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later than
15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that satisfies
the provisions of Section 11(a) and Rule 158 of the Securities Act. The Company’s compliance with the periodic reporting requirements
of the Exchange Act shall be deemed to satisfy the requirements of this Section 8(f).
(g) Use
of Proceeds. The Company will use the Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(h) Notice
of Other Sales. Without the prior written consent of the Agent, the Company will not, directly or indirectly, offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Ordinary Shares (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Ordinary Shares, warrants or any rights to purchase or acquire Ordinary
Shares during the period beginning on the fifth (5th) Trading Day immediately prior to the date on which any Placement Notice
is delivered to the Agent hereunder and ending on the fifth (5th) Trading Day immediately following the final Settlement Date
with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended
prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination) (the “Notice
Period”); and will not directly or indirectly in any other “at the market” or continuous equity transaction
offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Ordinary Shares (other than the Placement
Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Ordinary Shares, warrants or any rights
to purchase or acquire, Ordinary Shares prior to the sixtieth (60th) day immediately following the termination of this Agreement;
provided, however, that such restrictions will not be required in connection with the Company’s issuance or sale of
(i) Ordinary Shares, options to purchase Ordinary Shares, warrants to purchase Ordinary Shares or Ordinary Shares issuable upon the exercise
of options or warrants, pursuant to any employee or director stock option, warrant or benefits plan, stock ownership plan or dividend
reinvestment plan (but not Ordinary Shares subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company
whether now in effect or hereafter implemented, (ii) Ordinary Shares issuable upon conversion of securities or the exercise of warrants,
options or other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise in writing to
the Agent, and (iii) Ordinary Shares or securities convertible into or exchangeable for Ordinary Shares as consideration for mergers,
acquisitions, or other business combinations or strategic alliances occurring after the date of this Agreement which are not issued for
capital raising purposes.
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice, advise the Agent promptly after it shall
have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any
opinion, certificate, letter or other document required to be provided to the Agent pursuant to this Agreement.
(j) Due
Diligence Cooperation. The Company will cooperate with any reasonable investigation or “due diligence” review conducted
by the Agent or its representatives in connection with the transactions contemplated hereby, including, without limitation, providing
information and making available documents and senior corporate officers, during regular business hours and at the Company’s principal
offices, as the Agent may reasonably request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company shall disclose in its Annual Report on Form 20-F, the number of the
Placement Shares sold through the Agent under this Agreement, and the net proceeds to the Company from the sale of the Placement Shares
pursuant to this Agreement during the relevant fiscal year. The Company agrees that on such dates as the Securities Act shall require,
the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities
Act, which prospectus supplement will set forth, within the relevant period, the amount of Placement Shares sold through the Agent, the
Proceeds to the Company and the compensation payable by the Company to the Agent with respect to such Placement Shares, and (ii) deliver
such number of copies of each such prospectus supplement to each exchange or market on which such sales were effected as may be required
by the rules or regulations of such exchange or market; provided, however, that no such filing shall be required if the Company shall
have disclosed such information in its most recent periodic report filed pursuant to the Exchange Act, and such disclosure is sufficient
pursuant to the Exchange Act.
(l) Representation
Dates; Certificate. (1) Prior to the date of the first Placement Notice and (2) each time the Company:
(i) files
the Prospectus relating to the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to an offering
of securities other than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares by means
of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration
Statement or the Prospectus relating to the Placement Shares;
(ii) files
an Annual Report on Form 20-F under the Exchange Act (including any Form 20-F/A containing amended financial information or a material
amendment to the previously filed Form 20-F);
(iii) furnishes
its quarterly results of operations on a Report on Form 6-K under the Exchange Act; or
(iv) furnishes
or files a current Report on Form 6-K containing amended financial information under the Exchange Act that is incorporated by reference
into the Registration Statement (each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be
a “Representation Date”);
the Company shall furnish the Agent (but in the
case of clause (iv) above only if the Agent reasonably determines that the information contained in such Report on Form 6-K is material)
with a certificate dated the Representation Date, in the form attached hereto as Exhibit 8(l), modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended or supplemented. The requirement to provide a certificate under this Section
8(1) shall be waived for any Representation Date occurring at a time a Placement Notice is not pending or a Suspension is in effect,
which waiver shall continue until the earlier to occur of the date the Company delivers instructions for the sale of Placement Shares
hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date. Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when a Placement Notice was
not pending or a Suspension was in effect and did not provide the Agent with a certificate under this Section 8(l), then before
the Company delivers the instructions for the sale of Placement Shares or the Agent sells any Placement Shares pursuant to such instructions,
the Company shall provide the Agent with a certificate in conformity with this Section 8(l) dated as of the date that the instructions
for the sale of Placement Shares are issued.
(m) Legal
Opinions. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation Date with
respect to which the Company is obligated to deliver a certificate pursuant to Section 8(l) for which no waiver is applicable and
excluding the date of this Agreement, the Company shall cause to be furnished to the Agent (i) a written opinion of each of Sullivan &
Worcester LLP (“Company Counsel”), Sullivan & Worcester Tel-Aviv (Har-Even & Co.) (“Company
Israeli Counsel”), and (ii) a negative assurance letter of Company Counsel, each in form and substance satisfactory to the Agent
and its counsel, substantially similar to the forms previously provided to the Agent and its counsel, modified, as necessary, to relate
to the Registration Statement and the Prospectus as then amended or supplemented. (1) Prior to the first Placement Notice and (2) within
five (5) Trading Days of each Representation Date with respect to which the Company is obligated to deliver a certificate pursuant to
Section 8(l) for which no waiver is applicable and excluding the date of this Agreement, the Company shall cause to be furnished
to the Agent a written opinion of Greenberg Traurig, LLP, intellectual property counsel for the Company (“Company IP Counsel”)
or other counsel satisfactory to the Agent. Notwithstanding the foregoing, in lieu of such opinions for subsequent periodic filings under
the Exchange Act, counsel may furnish the Agent with a letter (a “Reliance Letter”) to the effect that the Agent
may rely on a prior opinion delivered under this Section 8(m) to the same extent as if it were dated the date of such letter (except
that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented
as of the date of the Reliance Letter).
(n) Comfort
Letter. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation Date with
respect to which the Company is obligated to deliver a certificate pursuant to Section 8(l) for which no waiver is applicable and
excluding the date of this Agreement, the Company shall cause (i) its independent registered public accounting firm to furnish the Agent
letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet the requirements
set forth in this Section 8(n) and (ii) the Company’s chief financial officer to furnish the Agent a certificate (the “CFO
Certificate”), dated the date the CFO Certificate is delivered; provided, that if requested by the Agent, the Company
shall cause a Comfort Letter and/or CFO Certificate to be furnished to the Agent within ten (10) Trading Days of the date of occurrence
of any material transaction or event requiring the filing of a current Report on Form 6-K containing financial information (including
the restatement of the Company’s financial statements). The Comfort Letter from the Company’s independent registered public
accounting firm shall be in a form and substance satisfactory to the Agent, (i) confirming that they are an independent registered public
accounting firm within the meaning of the Securities Act and the Public Company Accounting Oversight Board (“PCAOB”),
(ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings (the first
such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information
that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the
Registration Statement and the Prospectus, as amended and supplemented to the date of such letter. The CFO Certificate shall be in a form
and substance satisfactory to the Agent, with respect to certain financial data contained in the Registration Statement, Prospectus or
documents incorporated by reference therein, providing “management comfort” with respect to such information, in form and
substance reasonably satisfactory to the Agent.
(o) Market
Activities; Compliance with Regulation M. The Company will not, directly or indirectly, (i) take any action designed to cause or result
in, or that constitutes or would reasonably be expected to constitute, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of Ordinary Shares or (ii) sell, bid for, or purchase Ordinary Shares in violation of
Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Agent.
(p) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its subsidiaries
will be or become, at any time prior to the termination of this Agreement, required to register as an “investment company,”
as such term is defined in the Investment Company Act.
(q) No
Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agent in its capacity as agent
hereunder, neither the Agent nor the Company (including its agents and representatives, other than the Agent in its capacity as such)
will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities Act), required
to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement Shares hereunder.
(r) Blue
Sky and Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Agent, to qualify
the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold, under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as the Agent may designate and to maintain such qualifications
and exemptions in effect for so long as required for the distribution of the Placement Shares (but in no event for less than one year
from the date of this Agreement); provided, however, that the Company shall not be obligated to file any general consent
to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction
in which the Placement Shares have been so qualified or exempt, the Company will file such statements and reports as may be required by
the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the
distribution of the Placement Shares (but in no event for less than one year from the date of this Agreement).
(s) Sarbanes-Oxley
Act. The Company and the subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal
accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP and including those policies and procedures that (i) pertain to
the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of
the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit the preparation of the Company’s
consolidated financial statements in accordance with GAAP, (iii) receipts and expenditures of the Company are being made only in accordance
with management’s and the Company’s directors’ authorization, and (iv) provide reasonable assurance regarding prevention
or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on
its financial statements. The Company and the subsidiaries will maintain such controls and other procedures, including, without limitation,
those required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable regulations thereunder that are designed to ensure
that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in the Commission’s rules and forms, including, without limitation, controls
and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under
the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive officer and principal
financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and
to ensure that material information relating to the Company or the subsidiaries is made known to them by others within those entities,
particularly during the period in which such periodic reports are being prepared.
(t) Secretary’s
Certificate; Further Documentation. Prior to the date of the first Placement Notice, the Company shall deliver to the Agent a certificate
of the Secretary of the Company and attested to by an executive officer of the Company, dated as of such date, certifying as to (i) the
articles of association of the Company, (ii) any other organizational documents of the Company, (iii) the resolutions of the Board of
Directors of the Company authorizing the execution, delivery and performance of this Agreement and the issuance of the Placement Shares
and (iv) the incumbency of the officers duly authorized to execute this Agreement and the other documents contemplated by this Agreement.
Within five (5) Trading Days of each Representation Date, the Company shall have furnished to the Agent such further information, certificates
and documents as the Agent may reasonably request.
9. Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including
(i) the preparation and filing of the Registration Statement and the Prospectus, including any fees required by the Commission, and the
printing or electronic delivery of the Prospectus as originally filed and of each amendment and supplement thereto, in such number as
the Agent shall deem necessary, (ii) the printing and delivery to the Agent of this Agreement and such other documents as may be required
in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery
of the certificates, if any, for the Placement Shares to the Agent, including any stock or other transfer taxes and any capital duties,
stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to the Agent, (iv) the fees
and disbursements of the counsel, accountants and other advisors to the Company, (v) the fees and expenses of the counsel to the Agent
with respect to the period before the execution of this Agreement, payable upon the execution of this Agreement, in an amount not to exceed
$50,000 in connection with the execution of this Agreement, (vi) the qualification or exemption of the Placement Shares under state securities
laws in accordance with the provisions of Section 8(r) hereof, including filing fees, but excluding fees of the Agent’s counsel,
(vii) the printing and delivery to the Agent of copies of any Permitted Free Writing Prospectus (as defined below) and the Prospectus
and any amendments or supplements thereto in such number as the Agent shall deem necessary, (viii) the preparation, printing and delivery
to the Agent of copies of the blue sky survey, (ix) the fees and expenses of the transfer agent and registrar for the Ordinary Shares,
(x) the filing and other fees incident to any review by FINRA of the terms of the sale of the Placement Shares including the fees of the
Agent’s counsel (subject to the cap, set forth in clause (v) above), and (xi) the fees and expenses incurred in connection with
the listing of the Placement Shares on the Exchange. If requested by the Agent, the Company agrees to pay the fees and expenses of counsel
to the Agent set forth in clause (v) above by wire transfer of immediately available funds directly to such counsel upon presentation
of an invoice containing the requisite payment information prepared by such counsel.
10. Conditions
to the Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will be subject to the
continuing accuracy and completeness of the representations and warranties made by the Company herein, to the due performance by the Company
of its obligations hereunder, to the completion by the Agent of a due diligence review satisfactory to it in its reasonable judgment,
and to the continuing satisfaction (or waiver by the Agent in their sole discretion) of the following additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall have become effective and shall be available for the (i) resale of all Placement
Shares issued to the Agent and not yet sold by the Agent and (ii) sale of all Placement Shares contemplated to be issued by any Placement
Notice.
(b) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for
additional information from the Commission or any other federal or state Governmental Authority during the period of effectiveness of
the Registration Statement, the response to which would require any post-effective amendments or supplements to the Registration Statement
or the Prospectus; (ii) the issuance by the Commission or any other federal or state Governmental Authority of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company of
any notification with respect to the suspension of the qualification or exemption from qualification of any of the Placement Shares for
sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event that
makes any statement of material fact made in the Registration Statement or the Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue or that requires the making of any changes in the Registration Statement, the Prospectus or documents
incorporated by reference therein so that, in the case of the Registration Statement, it will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and,
that in the case of the Prospectus, it will not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) No
Misstatement or Material Omission. The Agent shall not have advised the Company that the Registration Statement or Prospectus, or
any amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s reasonable opinion is material, or
omits to state a fact that in the Agent’s reasonable opinion is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(d) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports furnished or filed with the Commission,
there shall not have been any material adverse change in the authorized share capital of the Company or any Material Adverse Effect or
any development that would cause a Material Adverse Effect, or a downgrading in or withdrawal of the rating assigned to any of the Company’s
securities (other than asset backed securities) by any rating organization or a public announcement by any rating organization that it
has under surveillance or review its rating of any of the Company’s securities (other than asset backed securities), the effect
of which, in the case of any such action by a rating organization described above, in the reasonable judgment of the Agent (without relieving
the Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed
with the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.
(e) Legal
Opinions. The Agent shall have received the opinions and negative assurance letters required to be delivered pursuant to Section
8(m) on or before the date on which such delivery of such opinions is required pursuant to Section 8(m).
(f) Comfort
Letter. The Agent shall have received the Comfort Letter required to be delivered pursuant to Section 8(n) on or before the
date on which such delivery of such Comfort Letter is required pursuant to Section 8(n).
(g) Representation
Certificate. The Agent shall have received the certificate required to be delivered pursuant to Section 8(l) on or before the
date on which delivery of such certificate is required pursuant to Section 8(l).
(h) No
Suspension. Trading in the Ordinary Shares shall not have been suspended on the Exchange and the Ordinary Shares shall not have been
delisted from the Exchange.
(i) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 8(l), the Company shall
have furnished to the Agent such appropriate further information, opinions, certificates, letters and other documents as the Agent may
reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof.
(j) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the issuance
of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424.
(k) Approval
for Listing. The Placement Shares shall either have been (i) approved for listing on the Exchange, subject only to notice of issuance,
or (ii) the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to, the issuance
of any Placement Notice and the Exchange shall have reviewed such application and not provided any objections thereto.
(l) FINRA.
If applicable, FINRA shall have raised no objection to the terms of this offering and the amount of compensation allowable or payable
to the Agent as described in the Prospectus.
(m) No
Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant to Section
13(a).
11. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates and its partners, members, directors,
officers, employees and agents and each person, if any, who controls the Agent or any affiliate within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading,
or arising out of any untrue statement or alleged untrue statement of a material fact included in any related Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 11(d) below) any such settlement is effected with the written consent of the Company, which consent shall
not unreasonably be delayed or withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission (whether or not a
party), to the extent that any such expense is not paid under (i) or (ii) above,
provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made solely in reliance upon and in conformity with the Agent’s Information (as defined
below).
(b) Agent
Indemnification. The Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained
in Section 11(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendments thereto), the Prospectus (or any amendment or supplement thereto) or any Issuer
Free Writing Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information relating to the Agent
and furnished to the Company in writing by the Agent expressly for use therein. The Company hereby acknowledges that the only information
that the Agent has furnished to the Company expressly for use in the Registration Statement, the Prospectus, any Prospectus Supplement
or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) are the statements set forth in the first two sentences
of the fifth paragraph, the seventh paragraph and eighth paragraph under the caption “Plan of Distribution” in the Prospectus
(the “Agent’s Information”).
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 11 will, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this Section
11, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served, but the omission
so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might have to any indemnified
party otherwise than under this Section 11 and (ii) any liability that it may have to any indemnified party under the foregoing
provision of this Section 11 unless, and only to the extent that, such omission results in the forfeiture of substantive rights
or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies the indemnifying party
of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written
notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any other legal expenses except as provided below and except for the reasonable
costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have
the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense
of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying
party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it
or other indemnified parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential
conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which
case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel to assume the defense of such action or counsel reasonably satisfactory to the indemnified
party, in each case, within a reasonable time after receiving notice of the commencement of the action; in each of which cases the reasonable
fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. The indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm (plus local counsel) admitted to practice in such jurisdiction at any one
time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not, in any event, be liable for any settlement of any action or claim
effected without its written consent (such consent not to be unreasonably withheld or delayed). No indemnifying party shall, without the
prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating to the matters contemplated by this Section 11 (whether or not any indemnified party is a
party thereto), unless such settlement, compromise or consent (1) includes an express and unconditional release of each indemnified party,
in form and substance reasonably satisfactory to such indemnified party, from all liability arising out of such litigation, investigation,
proceeding or claim and (2) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf
of any indemnified party.
(d) Settlement
Without Consent if Failure to Reimburse. If an indemnified party shall have requested an indemnifying party to reimburse the indemnified
party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 11(a)(ii) effected without its written consent if (1) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (2) such indemnifying party shall have received notice of the terms
of such settlement at least 30 days prior to such settlement being entered into and (3) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such settlement.
(e) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs
of this Section 11 is applicable in accordance with its terms but for any reason is held to be unavailable or insufficient from
the Company or the Agent, the Company and the Agent will contribute to the total losses, claims, liabilities, expenses and damages (including
any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted) to which the Company and the Agent may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the Agent on the other hand. The relative benefits received
by the Company on the one hand and the Agent on the other hand shall be deemed to be in the same proportion as the total net proceeds
from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation received by the
Agent from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence is
not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only
the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one hand, and the Agent,
on the other hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action
in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company or the Agent, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Agent agree that
it would not be just and equitable if contributions pursuant to this Section 11(e) were to be determined by pro rata allocation
or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred
to above in this Section 11(e) shall be deemed to include, for the purpose of this Section 11(e), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim to the extent consistent
with Section 11(c) hereof. Notwithstanding the foregoing provisions of this Section 11(e), the Agent shall not be required
to contribute any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 11(e), any person who controls a party to this Agreement within
the meaning of the Securities Act, any affiliates of the Agent and any officers, directors, partners, employees or agents of the Agent
or any of its affiliates, will have the same rights to contribution as that party, and each director of the Company and each officer of
the Company who signed the Registration Statement will have the same rights to contribution as the Company, subject in each case to the
provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such party
in respect of which a claim for contribution may be made under this Section 11(e), will notify any such party or parties from whom
contribution may be sought, but the omission to so notify will not relieve that party or parties from whom contribution may be sought
from any other obligation it or they may have under this Section 11(e) except to the extent that the failure to so notify such
other party materially prejudiced the substantive rights or defenses of the party from whom contribution is sought. Except for a settlement
entered into pursuant to the last sentence of Section 11(c) hereof, no party will be liable for contribution with respect to any
action or claim settled without its written consent if such consent is required pursuant to Section 11(c) hereof.
12. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 11 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (i) any investigation made by or on behalf of the Agent, any controlling persons, or the Company (or any of their
respective officers, directors, employees or controlling persons), (ii) delivery and acceptance of the Placement Shares and payment therefor
or (iii) any termination of this Agreement.
13. Termination.
(a) The
Agent may terminate this Agreement by notice to the Company, as hereinafter specified at any time (1) if there has been, since the time
of execution of this Agreement or since the date as of which information is given in the Prospectus, any change, or any development or
event involving a prospective change, in the condition, financial or otherwise, or in the business, properties, earnings, results of operations
or prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business,
which individually or in the aggregate, in the sole judgment of the Agent is material and adverse and makes it impractical or inadvisable
to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (2) if there has occurred any material adverse
change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Agent, impracticable
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (3) if trading in the Ordinary
Shares has been suspended or limited by the Commission or the Exchange, or if trading generally on the Exchange has been suspended or
limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market shall have occurred and be continuing, (5) if a major disruption of securities settlements
or clearance services in the United States shall have occurred and be continuing, or (6) if a banking moratorium has been declared by
either U.S. Federal or New York or Israeli authorities. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section
12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section
19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination. If the Agent elects to
terminate this Agreement as provided in this Section 13(a), the Agent shall provide the required notice as specified in Section 14
(Notices).
(b) The
Company shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole discretion
at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that
the provisions of Section 9, Section 11, Section 12, Section 18 and Section 19 hereof shall remain
in full force and effect notwithstanding such termination.
(c) The
Agent shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole discretion
at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that
the provisions of Section 9, Section 11, Section 12, Section 18 and Section 19 hereof shall remain
in full force and effect notwithstanding such termination.
(d) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), or (c) above or
otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in
all cases be deemed to provide that Section 9, Section 11, Section 12, Section 18 and Section 19 shall
remain in full force and effect.
(e) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company,
as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares
shall settle in accordance with the provisions of this Agreement.
14. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to:
Oppenheimer & Co., Inc.
85 Broad Street
New York, NY 10004
| |
Attention: |
General Counsel |
| |
Email: |
dennis.mcnamara@opco.com |
| |
Telephone: |
(212) 668-5770 |
with a copy to:
Mintz Levin Cohn Ferris Glovsky and Popeo
PC
919 Third Avenue
New York, NY 10022
| |
Attention: |
Ivan K. Blumenthal |
| |
Email: |
ikblumenthal@mintz.com |
| |
Telephone: |
(212) 692-6784 |
and if to the Company, shall be delivered to:
PolyPid Ltd.
18 Hasivim Street
Petach Tikva
Israel 4959376
| |
Attention: |
Chief Executive Officer |
| |
Email: |
Dikla.C@polypid.com |
with a copy to:
Sullivan & Worcester LLP
1251 Avenue of the Americas
New York, NY 10020
| |
Attention: |
Oded Har-Even |
| |
Email: |
ohareven@sullivanlaw.com |
| |
Telephone: |
(212) 660-3001 |
Each party to this Agreement
may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. Each
such notice or other communication shall be deemed given (i) when delivered personally on or before 4:30 p.m., New York City time, on
a Business Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) by Electronic Notice as set forth below,
(iii) on the next Business Day after timely delivery to a nationally-recognized overnight courier or (iv) on the Business Day actually
received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid). For purposes of this
Agreement, “Business Day” shall mean any day on which the Exchange and commercial banks in the City of New York
are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 14 if sent to the electronic
mail address specified by the receiving party under this Section 14. Electronic Notice shall be deemed received at the time the party
sending Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and
shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”) which shall
be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
15. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective
successors and the parties referred to in Section 11 hereof. References to any of the parties contained in this Agreement shall be deemed
to include the successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party.
16. Adjustments
for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any share split, share dividend or similar event effected with respect to the Ordinary Shares.
17. Entire
Agreement; Amendment; Severability; Waiver. This Agreement (including all schedules and exhibits attached hereto and Placement
Notices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof may
be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent
jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable,
and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision
was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof
shall be in accordance with the intent of the parties as reflected in this Agreement. No implied waiver by a party shall arise in the
absence of a waiver in writing signed by such party. No failure or delay in exercising any right, power, or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power, or privilege hereunder.
18. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH
PARTY 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.
19. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS
SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION
CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR
THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS
TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE
GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE
PROCESS IN ANY MANNER PERMITTED BY LAW. THE COMPANY IRREVOCABLY APPOINTS POLYPID INC. AS ITS AUTHORIZED AGENT UPON WHICH PROCESS MAY BE
SERVED IN ANY SUCH SUIT OR PROCEEDING, AND AGREES THAT SERVICE OF PROCESS UPON SUCH AGENT, AND WRITTEN NOTICE OF SAID SERVICE TO THE COMPANY
BY THE PERSON SERVING THE SAME TO 372 FRANKLIN AVE., P.O. BOX 558, NUTLEY, NJ 07110 SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE
OF PROCESS UPON THE COMPANY IN ANY SUCH SUIT OR PROCEEDING. THE COMPANY REPRESENTS AND WARRANTS THAT SUCH AGENT HAS AGREED TO ACT AS THE
COMPANY’S AGENT FOR SERVICE OF PROCESS, AND THE COMPANY FURTHER AGREES TO TAKE ANY AND ALL ACTIONS AS MAY BE NECESSARY TO MAINTAIN
SUCH DESIGNATION AND APPOINTMENT OF SUCH AGENT IN FULL FORCE AND EFFECT FOR A PERIOD OF SEVEN YEARS FROM THE DATE OF THIS AGREEMENT. FOR
THE AVOIDANCE OF DOUBT, OPPENHEIMER & CO., INC. CAN BE SERVED IN ANY SUCH SUIT OR PROCEEDING AT THE ADDRESS INDICATED UNDER SECTION
14 HEREOF.
20. Waiver
of Immunity. With respect to any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby, the Company irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty
or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise
be entitled, and with respect to any such suit or proceeding, the Company waives any such immunity in any court of competent jurisdiction,
and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such suit or proceeding, including, without
limitation, any immunity pursuant to the U.S. Foreign Sovereign Immunities Act of 1976, as amended.
21. Currency
Provisions. The obligations of the Company pursuant to this Agreement in respect of any sum due to the Agent, its partners,
members, directors, officers, employees and agents and each person, if any, who controls the Agent or any affiliate within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, shall, notwithstanding any judgment in a currency other than United
States dollars, not be discharged until the first business day, following receipt by such person of any sum adjudged to be so due in such
other currency, on which such person may in accordance with normal banking procedures purchase United States dollars with such other currency.
If the United States dollars so purchased are less than the sum originally due to any such person in United States dollars hereunder,
the Company agrees as a separate obligation and notwithstanding any such judgment, to indemnify such person against such loss.
22. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by electronic mail (including
any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures
and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be
deemed to have been duly and validly delivered and be valid and effective for all purposes.
23. Construction.
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof. References herein to any
law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority shall be deemed to refer to such law,
statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority as amended, reenacted, supplemented or superseded
in whole or in part and in effect from time to time and also to all rules and regulations promulgated thereunder.
24. Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior written consent of
the Agent, and the Agent represents, warrants and agrees that, unless it obtains the prior written consent of the Company, it has not
made and will not make any offer relating to the Placement Shares 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 with the Commission. Any such
free writing prospectus consented to by the Agent or by the Company, as the case may be, is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free
Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the
requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required,
legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed
in Exhibit 21 hereto are Permitted Free Writing Prospectuses.
25. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the
Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company
or any of its respective affiliates, shareholders (or other equity holders), creditors or employees or any other party, on the one hand,
and the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether or not the Agent has advised or is advising the Company on other matters, and the Agent has no obligation to the Company with
respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) neither
the Agent nor its affiliates have provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it
is aware that the Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those
of the Company and the Agent and its affiliates have no obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship or otherwise; and
(e) it
waives, to the fullest extent permitted by law, any claims it may have against the Agent or its affiliates for breach of fiduciary duty
or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the Agent and
its affiliates shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary
duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of
Company.
26. Payments.
All payments made or deemed to be made by the Company under this Agreement, if any, to the Agent and each of the Agent’s affiliates
and their respective partners, members, directors, officers, employees and agents, and each person, if any, who (i) controls such Agent
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control
with such Agent (each, a “Payee”), as the case may be, will be made without withholding or deduction for or
on account of any present or future taxes, duties, assessments or governmental charges of whatsoever nature imposed or levied by or on
behalf of the State of Israel or any political subdivision or any taxing authority thereof or therein or of any other jurisdiction in
which the Company is organized or incorporated, engaged in business for tax purposes or is otherwise resident for tax purposes or has
a permanent establishment, any jurisdiction from or through which a payment is made by or on behalf of the Company, or any political subdivision,
authority or agency in or of any of the foregoing having power to tax (each, a “Relevant Taxing Jurisdiction”),
unless the Company is or becomes required by law to withhold or deduct such taxes, duties, assessments or other governmental charges.
In such event, the Company will pay such additional amounts as will result, after such withholding or deduction, in the receipt by the
applicable Payee of the amounts that would otherwise have been received by such Payee had such deduction or withholding not been required.
All sums payable, paid or deemed payable under this Agreement shall be considered exclusive of value added tax, sales tax or other similar
taxes which shall be borne by, paid, collected and remitted by the Company, if applicable, in accordance with applicable law.
27. Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable Time”
means (i) each Representation Date, (ii) the time of each sale of any Placement Shares pursuant to this Agreement and (iii) each Settlement
Date.
“Governmental
Authority” means (i) any federal, provincial, state, local, municipal, national or international government or governmental
authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court,
tribunal, arbitrator or arbitral body (public or private); (ii) any self-regulatory organization; or (iii) any political subdivision of
any of the foregoing.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement Shares
that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that is a “written communication”
within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is exempt from filing pursuant
to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering that does not reflect the final terms,
in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g) under the Securities Act Regulations.
“Rule 164,”
“Rule 172,” “Rule 405,” “Rule 415,” “Rule 424,”
“Rule 424(b),” “Rule 430B,” and “Rule 433” refer to such
rules under the Securities Act Regulations.
All references in this Agreement
to financial statements and schedules and other information that is “contained,” “included” or “stated”
in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information that is incorporated by reference in the Registration Statement or the Prospectus,
as the case may be.
All references in this Agreement
to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy
filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer
Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to include the
copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to “supplements” to the Prospectus
shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with any offering,
sale or private placement of any Placement Shares by the Agent outside of the United States.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company and the Agent.
| | Very truly yours, |
| | | |
| | POLYPID LTD. |
| | | |
| By: | /s/ Dikla Czaczkes Akselbrad |
| Name: | Dikla Czaczkes Akselbrad |
| Title: | Chief Executive Officer |
| | ACCEPTED as of the date first-above written: |
| | | |
| | OPPENHEIMER & CO. INC. |
| | | |
| By: | /s/
Michael Margolis |
| Name: | Michael Margolis, R.Ph. |
| Title: | Senior Managing Director, Head of Healthcare Investment Banking |
[Signature page to POLYPID ATM Sales Agreement]
SCHEDULE 1
Form of Placement Notice
| From: |
POLYPID LTD. |
| |
| To: |
Oppenheimer & Co., Inc. |
| |
| Attention: |
[●] |
| |
| Subject: |
Placement Notice |
| |
| Date: |
[●], 202[●] |
Ladies and Gentlemen:
Pursuant to the terms and
subject to the conditions contained in the Sales Agreement between POLYPID LTD., a company organized under the laws of the State of Israel
(the “Company”), Oppenheimer & Co., Inc., dated November 8, 2024, the Company hereby requests that Oppenheimer
& Co., Inc. sell up to [●] of the Company’s Ordinary Shares, no par value per share, at a minimum market price of $[●]
per share, during the time period beginning [month, day, time] and ending [month, day, time].
SCHEDULE 2
The Company shall pay to the
Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to 3.0% of the aggregate gross proceeds
from each sale of Placement Shares.
SCHEDULE 3
The Company
| Jonny Missulawin (Chief Financial Officer) |
jonny.m@polypid.com |
| |
| Dikla Czaczkes Akselbrad (Chief Executive Officer) |
dikla.c@polypid.com |
The Agent
| Stephanie Cruz |
stephanie.cruz@opco.com |
| |
| Thomas Villano |
Thomas.Villano@opco.com |
With a copy to: DL-EquityATMOffering@opco.com
Exhibit 7(l)
Form of Representation Date Certificate Pursuant
to Section 8(l)
The undersigned, the duly
qualified and elected __________ of POLYPID LTD., a company organized under the laws of the State of Israel (the “Company”),
does hereby certify in such capacity and on behalf of the Company, pursuant to Section 8(l) of the Sales Agreement, dated November 8,
2024, by and between Oppenheimer & Co., Inc., as agent (the “Agent”) and the Company (the “Sales
Agreement”), that to the best of the knowledge of the undersigned:
(i) The
representations and warranties of the Company in Section 7 of the Sales Agreement are true and correct on and as of the date hereof
with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that
speak solely as of a specific date and which were true and correct as of such date; provided, however, that such representations
and warranties also shall be qualified by the disclosure included or incorporated by reference in the Registration Statement and the Prospectus;
and
(ii) The
Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Sales Agreement
at or prior to the date hereof.
Each of Sullivan & Worcester
LLP, counsel to the Company, Sullivan & Worcester Tel-Aviv (Har-Even & Co.), Israeli counsel to the Company, and Mintz Levin Cohn
Ferris Glovsky & Popeo, counsel to the Agent, is entitled to rely upon this certificate in connection with the respective opinions
and/or negative assurance letters given by such firms pursuant to the Sales Agreement.
Capitalized terms not defined
herein but used herein shall have the same meaning ascribed to them in the Sales Agreement.
| |
POLYPID LTD. |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
Date: [●]
Exhibit 21
Permitted Free Writing Prospectus
None.
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