As
filed with the Securities and Exchange Commission on October 28, 2008
Registration
No. 333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
XTL
BIOPHARMACEUTICALS LTD.
(Exact
Name of Registrant as Specified in Its Charter)
|
Israel
|
|
98-0487467
|
|
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
|
(I.R.S.
Employer
Identification
No.)
|
711
Executive Blvd., Suite Q
Valley
Cottage, New York 10989
Tel:
(845) 267-0707
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s
Principal Executive Offices)
Non-Plan
Share Options
(Full
title of the Plan)
Ron
Bentsur
Chief
Executive Officer
711
Executive Blvd., Suite Q
Valley
Cottage, NY 10989
Tel:
(845) 267-0707
Fax:
(845) 267-0926
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of
Agent
For Service)
The
Commission is requested to send copies of all communications to:
Mark
F. McElreath, Esq.
Alston
& Bird LLP
90
Park Avenue
New
York, New York 10016-1387
Telephone:
(212) 210-9595
Facsimile:
(212) 922-3995
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company.
See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
|
Large
accelerated filer
|
|
Accelerated
filer
|
|
Non-accelerated
filer
þ
|
|
Smaller
reporting company
|
The
Registrant hereby amends this registration statement on such date or dates
as
may be necessary to delay its effective date until the Registrant shall file
a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
CALCULATION
OF REGISTRATION FEE
|
Title of Each Class of Securities
To Be Registered
|
|
Amount To Be
Registered
|
|
Proposed
Maximum
Offering Price
Per Share
|
|
Proposed Maximum
Aggregate Offering
Price
|
|
Amount of
Registration Fee
|
|
|
Ordinary
Shares of XTL Biopharmaceuticals Ltd.,
par
value NIS 0.02 per share
|
|
|
4,700,000
|
|
$
|
0.198
|
(1)
|
$
|
930,600
|
(1)
|
$
|
36.58
|
|
|
Ordinary
Shares of XTL Biopharmaceuticals Ltd.,
par
value NIS 0.02 per share
|
|
|
300,000
|
|
$
|
0.350
|
(1)
|
$
|
105,000
|
(1)
|
$
|
4.13
|
|
|
Total:
|
|
|
5,000,000
|
|
|
—
|
|
$
|
1,035,600
|
|
$
|
40.71
|
|
|
|
(1)
|
Determined
in accordance with Rule 457(h), the registration fee calculation
with
respect to the ordinary shares underlying prior grants of options
is
computed on the basis of the price at which the options may be
exercised.
|
This
Registration Statement shall become effective upon filing in accordance with
Rule 462 under the Securities Act.
EXPLANATORY
NOTE
XTL
Biopharmaceuticals Ltd. (the “Registrant”), has prepared this Registration
Statement in accordance with the requirements of Form S−8 under the Securities
Act of 1933, as amended (the “Securities Act”). This Registration Statement
registers 5,000,000 ordinary shares of the Registrant which may be issued from
time to time to holders of options and for re-offer and/or resale by the
individuals listed under the Selling Stockholder section of the prospectus
(collectively, the “Selling Stockholders”).
This
Registration Statement consists primarily of two parts. The first part contains
a re-offer prospectus prepared in accordance with Part I of Form F-3 (in
accordance with Instructions B.3. and C of the General Instructions to Form
S−8). The second part contains information required in the Registration
Statement pursuant to Part II of Form S−8.
RE-OFFER
PROSPECTUS
XTL
Biopharmaceuticals Ltd.
5,000,000
Ordinary
Shares
This
prospectus relates to the resale of up to 5,000,000 ordinary shares that the
Selling Shareholders named in this prospectus may offer from time to
time.
The
registration of these shares does not necessarily mean the Selling Shareholders
will offer or sell all or any of these ordinary shares. We will not receive
any
proceeds from the sales of any ordinary shares by the Selling Shareholders,
but
will incur expenses in connection with the registration of these ordinary
shares.
The
Selling Shareholders from time to time may offer and resell the ordinary shares
held by them directly or through agents or broker-dealers on terms to be
determined at the time of sale. To the extent required, the names of any agent
or broker-dealer and applicable commissions or discounts and any other required
information with respect to any particular offer will be set forth in a
prospectus supplement that will accompany this prospectus. A prospectus
supplement may also add, update or change information contained in this
prospectus. Each of the Selling Shareholders reserves the sole right to accept
or reject, in whole or in part, any proposed purchase of the ordinary shares
to
be made directly or through agents.
Our
ordinary shares are traded in the form of American Depository Receipts, or
ADRs,
evidencing American Depository Shares, or ADSs, on the Nasdaq Capital Market
under the symbol “XTLB.” Each ADR represents ten ordinary shares. Our ordinary
shares are traded on the Tel Aviv Stock Exchange under the symbol “XTL.” On
October 27, 2008, the closing price of our ADRs as reported on the Nasdaq
Capital Market was $2.35 per ADR, and the closing price of our ordinary shares
as reported on the Tel Aviv Stock Exchange was NIS 0.874 per ordinary
share.
Investing
in our securities involves certain risks. See “Risk Factors” beginning on page 4
of our Annual Report on Form 20-F for the year ended December 31, 2007, which
has been filed with the Securities and Exchange Commission and is incorporated
by reference into this prospectus. You should read the entire prospectus
carefully before you make your investment decision.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or determined if this prospectus
is
truthful or complete. Any representation to the contrary is a criminal
offense.
The
date
of this prospectus is October 28, 2008
|
|
|
Page
|
|
|
|
|
|
Important
Information About This Prospectus
|
|
1
|
|
Where
You Can Find More Information
|
|
1
|
|
Cautionary
Note Regarding Forward Looking Statements
|
|
2
|
|
Risk
Factors
|
|
2
|
|
Prospectus
Summary
|
|
3
|
|
XTL
Biopharmaceuticals Ltd.
|
|
3
|
|
The
Offering
|
|
3
|
|
Capitalization
|
|
4
|
|
Use
of Proceeds
|
|
4
|
|
Selling
Shareholders
|
|
5
|
|
Description
of Share Capital
|
|
6
|
|
Description
of American Depository Receipts
|
|
6
|
|
Description
of Ordinary Shares
|
|
13
|
|
Plan
of Distribution
|
|
17
|
|
Indemnification
for Liabilities
|
|
18
|
|
Legal
Matters
|
|
18
|
|
Experts
|
|
18
|
IMPORTANT
INFORMATION ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-8 that we filed with
the Securities and Exchange Commission, or SEC, on October 28, 2008. By using
this prospectus, our Selling Shareholders may sell their securities, as
described in this prospectus, from time to time in one or more offerings. The
Selling Shareholders may use the prospectus to offer and sell securities
described in this prospectus. Before purchasing any securities, you should
carefully read both this prospectus, together with the additional information
incorporated into this prospectus or described under the heading “Where You Can
Find More Information.”
You
should rely only on the information contained or incorporated by reference
in
this prospectus. We have not authorized any other person to provide you with
different information. If anyone provides you with different or inconsistent
information, you should not rely on it. We will not make an offer to sell
securities in any jurisdiction where the offer or sale is not permitted. You
should assume that the information appearing in this prospectus, as well as
information we previously filed with the SEC and have incorporated by reference,
is accurate as of the date on the front cover of this prospectus only. Our
business, financial condition, results of operations and prospects may have
changed since that date.
WHERE
YOU CAN FIND MORE INFORMATION
We
file
annual reports and other information with the SEC. You may read and copy, at
prescribed rates, any documents we have filed with the SEC at its Public
Reference Room located at 100 F Street, N.E., Washington, D.C. 20549. You may
obtain information on the operation of the Public Reference Room by calling
the
SEC at 1-800-SEC-0330. We also file these documents with the SEC electronically.
You can access the electronic versions of these filings on the SEC’s Internet
website found at http://www.sec.gov. You can also obtain copies of materials
we
file with the SEC from our Internet website found at www.xtlbio.com. Our stock
is quoted on the Nasdaq Capital Market under the symbol “XTLB.”
We
are
“incorporating by reference” into this prospectus certain documents we file with
the SEC, which means that we can disclose important information to you by
referring you to these documents. The information in the documents incorporated
by reference is considered to be part of this prospectus. We incorporate by
reference:
|
|
●
|
our
annual report on Form 20-F for the fiscal year ended December 31,
2007,
filed with the SEC on March 27,
2008;
|
|
|
●
|
our
current reports on Form 6-K filed with the SEC on May 28, 2008,
June 30,
2008, August 5, 2008, August 14, 2008 (Film No. 081018968, Film
No.
081019092 and Film No. 081020491), August 15, 2008, August 28,
2008,
October 7, 2008, October 10, 2008 and October 24,
2008;
|
|
|
●
|
all
future annual reports on Form 20-F;
and
|
|
|
●
|
any
future reports on Form 6-K that we so indicate are incorporated
by
reference, that we may file with or furnish to the SEC under Sections
13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934, as
amended,
or the Exchange Act,
|
until
all the securities offered by this prospectus are
sold.
Information
contained in this prospectus updates, modifies or supersedes, as applicable,
the
information contained in earlier-dated documents incorporated by reference.
Information in documents that we file with the SEC after the date of this
prospectus will automatically update and supersede information in this
prospectus or in earlier-dated documents incorporated by reference.
We
will
provide to each person, including any beneficial owner, to whom a copy of this
prospectus is delivered, a copy of any or all of the information that we have
incorporated by reference into this prospectus. We will provide this information
upon written or oral request at no cost to the requester. You may request this
information by contacting our corporate headquarters at the following address:
711 Executive Blvd., Valley Cottage, New York 10989, or by calling (845)
267-0707.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain
matters discussed in this prospectus may constitute forward-looking statements
for purposes of the Securities Act of 1933, as amended, or the Securities Act,
and the Securities Exchange Act of 1934, as amended, or the Exchange Act, and
involve known and unknown risks, uncertainties and other factors that may cause
our actual results, performance or achievements to be materially different
from
the future results, performance or achievements expressed or implied by such
forward-looking statements. The words “expect,” “anticipate,” “intend,” “plan,”
“believe,” “seek,” “estimate,” and similar expressions are intended to identify
such forward-looking statements. Our actual results may differ materially from
the results anticipated in these forward-looking statements due to a variety
of
factors, including, without limitation, those discussed under “Risks Factors” in
our Annual Report on Form 20-F, as well as factors which may be identified
from
time to time in our other filings with the SEC, or in the documents where such
forward-looking statements appear. All written or oral forward-looking
statements attributable to us are expressly qualified in their entirety by
these
cautionary statements.
The
forward-looking statements contained in this prospectus reflect our views and
assumptions only as of the date of this prospectus. Except as required by law,
we assume no responsibility for updating any forward-looking statements.
RISK
FACTORS
Investment
in our securities involves a high degree of risk. You should carefully consider
the risks described in the section “Risk Factors” contained in our annual report
on form 20-F for the year ended December 31, 2007, and that may be contained
in
any filing we make with the SEC or any applicable prospectus supplement or
other
offering material, in addition to the other information contained in this
prospectus, or incorporated by reference herein, before purchasing any of our
securities. The section “Risk Factors” contained in our Annual Report on form
20-F for the year ended December 31, 2007 is incorporated herein by reference.
PROSPECTUS
SUMMARY
The
following is a summary of selected information contained elsewhere in this
prospectus. It does not contain all of the information that you should consider
before deciding to invest in our ordinary shares. You should read this entire
prospectus carefully, especially the section entitled “Risk Factors”. Unless the
context requires otherwise, references in this prospectus to “XTLbio,” the
“Company,” “we,” “us” and “our” refer to XTL Biopharmaceuticals Ltd. and our
wholly-owned subsidiaries, XTL Biopharmaceuticals, Inc. and XTL Development,
Inc. All references herein to “dollars” or “$” are to United States dollars, and
all references to “Shekels” or “NIS” are to New Israeli
Shekels.
XTL
BIOPHARMACEUTICALS LTD.
We
are a
biopharmaceutical company engaged in the development of therapeutics for the
treatment of diabetic neuropathic pain and HCV. We are developing Bicifadine,
a
triple reuptake inhibitor of serotonin, norepinephrine and dopamine, which
is
currently in a Phase 2b study for the treatment of diabetic neuropathic pain.
We
have out-licensed our novel pre-clinical HCV small molecule inhibitor
program.
Our
ADRs
are quoted on the Nasdaq Capital Market under the symbol “XTLB.” Our ordinary
shares are traded on the Tel Aviv Stock Exchange under the symbol “XTL.” We
operate under the laws of the State of Israel, under the Israeli Companies
Act,
and in the US, we operate subject to the Securities Act, the Exchange Act and
the regulations of the Nasdaq Capital Market.
Our
principal offices are located at 711 Executive Blvd., Suite Q
,
Valley
Cottage, New York 10989, and our telephone number is (845) 267-0707. The
principal offices of XTL Biopharmaceuticals, Inc., our wholly-owned US
subsidiary and agent for service of process in the US, are also located at
711
Executive Blvd., Suite Q
,
Valley
Cottage, New York 10989, and its telephone number is (845) 267-0707. Our primary
internet address is www.xtlbio.com. None of the information on our website
is
incorporated by reference into this prospectus.
THE
OFFERING
|
|
|
5,000,000
Ordinary Shares, par value NIS 0.02 per ordinary share
|
|
|
|
|
|
Use
of Proceeds
|
|
We
will not receive any proceeds from the sale of the ordinary shares
by the
Selling Shareholders.
|
|
|
|
|
|
|
|
XTLB
|
CAPITALIZATION
The
following table sets forth our capitalization as of June 30, 2008.
You
should read this table in conjunction with our consolidated financial statements
and related notes included in our most recent Annual Report on Form
20-F.
|
(In
thousands, except per share amounts)
|
|
As
of
June
30, 2008
(unaudited)
|
|
|
Cash,
cash equivalents and short-term bank deposits
|
|
$
|
8,288
|
|
|
Shareholders’
equity:
|
|
|
|
|
|
Ordinary
shares of NIS 0.02 par value (500,000,000 authorized as of June 30,
2008; 292,805,326 issued and outstanding as of June 30, 2008)
|
|
|
1,445
|
|
|
Additional
paid in capital
|
|
|
148,277
|
|
|
Deficit
accumulated during development
stage
|
|
|
(146,977
|
)
|
|
Total
shareholders’ equity
|
|
|
2,745
|
|
|
Total
capitalization
|
|
$
|
2,745
|
|
USE
OF PROCEEDS
We
will
not receive any proceeds from the sale of ordinary shares by the Selling
Shareholders.
SELLING
SHAREHOLDERS
The
Selling Shareholders may, from time to time, offer and sell pursuant to this
prospectus any or all of the ordinary shares. When we refer to the “Selling
Shareholders” in this prospectus, we mean those persons specifically identified
in the table below.
The
table
below sets forth the name of each Selling Shareholder and the number of ordinary
shares that each Selling Shareholder may offer pursuant to this prospectus,
from
time to time, as of October 28, 2008. The information presented regarding the
Selling Shareholders has been made available to us by the Selling
Shareholders.
Because
the Selling Shareholders may offer all, some or none of their ordinary shares
pursuant to this prospectus, and because there currently are no agreements,
arrangements or understandings with respect to the sale of any of these ordinary
shares, no definitive estimate can be given as to the amount of ordinary shares
that will be held by the Selling Shareholders after completion of the offering
to which this prospectus relates. The following table has been prepared assuming
that the Selling Shareholders sell all of the ordinary shares beneficially
owned
by them that have been registered by us and do not acquire any additional
ordinary shares. We cannot advise you as to whether the Selling Shareholders
will in fact sell any or all of their ordinary shares. In addition, the Selling
Shareholders may have sold, transferred or otherwise disposed of, or may sell,
transfer or otherwise dispose of, at any time and from time to time, the
ordinary shares in transactions exempt from the registration requirements of
the
Securities Act after the date on which they provided the information set forth
in the table below.
Information
concerning the Selling Shareholders may change from time to time, and any
changed information will be set forth in prospectus supplements or
post-effective amendments, as may be appropriate.
|
Selling Shareholder
|
|
Ordinary Shares
Beneficially
Owned Before
Resale
|
|
Ordinary Shares
Offered by this
Prospectus
|
|
Ordinary Shares
Beneficially
Owned After
Resale
|
|
Percentage of
Class
Beneficially
Owned After
Resale
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael
S. Weiss (1)
|
|
|
3,500,000
|
|
|
3,500,000
|
|
|
0
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kenneth
J. Zuerblis (2)
|
|
|
300,000
|
|
|
300,000
|
|
|
0
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jennifer
L. Good (3)
|
|
|
300,000
|
|
|
300,000
|
|
|
0
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Samuel
H. Rudman (4)
|
|
|
300,000
|
|
|
300,000
|
|
|
0
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ben-Zion
Weiner (5)
|
|
|
300,000
|
|
|
300,000
|
|
|
0
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William
Kennedy (6)
|
|
|
300,000
|
|
|
300,000
|
|
|
0
|
|
|
*
|
|
|
(1)
|
Michael
S. Weiss is the Chairman of the Board of Directors of the Company.
The
ordinary shares to be registered include 3,500,000 ordinary shares
to be
issued upon the exercise of outstanding options, 2,916,668 of
which are
vested as of the date
hereof.
|
|
(2)
|
Kenneth
J. Zuerblis is a Non-Executive and External Director of the Company.
The
ordinary shares to be registered include 300,000 ordinary shares
to be
issued upon the exercise of outstanding options, none of which are
vested
as of the date hereof.
|
|
(3)
|
Jennifer
L. Good is a Non-Executive and External Director of the Company.
The
ordinary shares to be registered include 300,000 ordinary shares
to be
issued upon the exercise of outstanding options, none of which are
vested
as of the date hereof.
|
|
(4)
|
Samuel
H. Rudman is a Non-Executive Director of the Company. The ordinary
shares
to be registered include 300,000 ordinary shares to be issued upon
the
exercise of outstanding options, none of which are vested as of the
date
hereof.
|
|
(5)
|
Ben-Zion
Weiner is a Non-Executive Director of the Company. The ordinary
shares to
be registered include 300,000 ordinary shares to be issued upon
the
exercise of outstanding options, none of which are vested as of
the date
hereof.
|
|
(6)
|
William
Kennedy is a Non-Executive Director of the Company. The ordinary
shares to
be registered include 300,000 ordinary shares to be issued upon
the
exercise of outstanding options, none of which are vested as of
the date
hereof.
|
DESCRIPTION
OF SHARE CAPITAL
Share
Capital
As
of
December 31, 2002, we had 300,000,000 ordinary shares, par value NIS 0.02,
authorized and 111,165,364 ordinary shares issued and outstanding. Since such
date and through June 30, 2008, we have issued an aggregate of 5,164,120
ordinary shares upon the exercise of options. In addition, in August 2004,
we
issued 56,009,732 ordinary shares pursuant to a placing and open offer for
new
ordinary shares on the London Stock Exchange, in September 2005, we issued
1,314,420 ordinary shares pursuant to a license agreement and an asset purchase
agreement with VivoQuest Inc., in May 2006, we issued 46,666,670 ordinary shares
pursuant to a private placement, and in November 2007, we issued 72,485,020
ordinary shares pursuant to a private placement.
As
of
June 30, 2008 we had 500,000,000 ordinary shares, par value NIS 0.02, authorized
and 292,805,326 ordinary shares issued and outstanding, respectively. All of
the
outstanding shares are issued and fully paid.
As
of
June 30, 2008, an additional 52,436,413 options and warrants were issuable
upon
the exercise of outstanding options and warrants to purchase our ordinary
shares. The exercise price of the options and warrants outstanding is between
$0.106 and $2.11 per share.
DESCRIPTION
OF AMERICAN DEPOSITORY RECEIPTS
American
Depository Shares
One
ADR
represents an ownership interest in ten of our ordinary shares. Each ADR also
represents securities, cash or other property deposited with The Bank of New
York Mellon but not distributed to ADR holders. The Bank of New York Mellon’s
Corporate Trust Office is located at 101 Barclay Street, New York, NY 10286,
U.S.A. Their principal executive office is located at One Wall Street, New
York,
NY 10286, U.S.A.
You
may
hold ADRs either directly or indirectly through your broker or other financial
institution. If you hold ADRs directly, you are an ADR holder. This description
assumes you hold your ADRs directly. If you hold the ADRs indirectly, you must
rely on the procedures of your broker or other financial institution to assert
the rights of ADR holders described in this section. You should consult with
your broker or financial institution to find out what those procedures are.
Because
The Bank of New York Mellon will actually hold the ordinary shares, you must
rely on it to exercise the rights of a shareholder. The obligations of The
Bank
of New York Mellon are set out in a deposit agreement among us, The Bank of
New
York Mellon and you, as an ADR holder. The agreement and the ADRs are generally
governed by New York law.
The
following is a summary of the agreement. Because it is a summary, it does not
contain all the information that may be important to you. For more complete
information, you should read the entire agreement and the ADR. Directions on
how
to obtain copies of these are provided in the section entitled “Where You Can
Find More Information.”
Share
Dividends and Other Distributions
The
Bank
of New York Mellon has agreed to pay to you the cash dividends or other
distributions it or the custodian receives on shares or other deposited
securities after deducting its fees and expenses. You will receive these
distributions in proportion to the number of shares your ADRs
represent.
Cash.
The Bank
of New York Mellon will convert any cash dividend or other cash distribution
we
pay on the shares into U.S. dollars, if it can do so on a reasonable basis
and
can transfer the U.S. dollars to the U.S. If that is not possible or if any
approval from any government or agency thereof is needed and cannot be obtained,
the agreement allows The Bank of New York Mellon to distribute the foreign
currency only to those ADR holders to whom it is possible to do so. It will
hold
the foreign currency it cannot convert for the account of the ADR holders who
have not been paid. It will not invest the foreign currency and it will not
be
liable for the interest.
Before
making a distribution, any withholding taxes that must be paid under U.S. law
will be deducted. See “Taxation—United States Federal Income Tax
Considerations—Taxation of Dividends Paid On Ordinary Shares.” The Bank of New
York Mellon will distribute only whole U.S. dollars and cents and will round
fractional cents to the nearest whole cent. If the exchange rates fluctuate
during a time when The Bank of New York Mellon cannot convert the foreign
currency, you may lose some or all of the value of the
distribution.
Shares.
The
Bank
of New York Mellon may distribute new ADRs representing any shares we may
distribute as a dividend or free distribution, if we furnish it promptly with
satisfactory evidence that it is legal to do so. The Bank of New York Mellon
will only distribute whole ADRs. It will sell shares which would require it
to
use a fractional ADR and distribute the net proceeds in the same way as it
does
with cash. If The Bank of New York Mellon does not distribute additional ADRs,
each ADR will also represent the new shares.
Rights
to receive additional shares
.
If we
offer holders of our ordinary shares any rights to subscribe for additional
shares or any other rights, The Bank of New York Mellon may make these rights
available to you. We must first instruct The Bank of New York Mellon to do
so
and furnish it with satisfactory evidence that it is legal to do so. If we
do
not furnish this evidence and/or give these instructions, and The Bank of New
York Mellon decides it is practical to sell the rights, The Bank of New York
Mellon will sell the rights and distribute the proceeds, in the same way as
it
does with cash. The Bank of New York Mellon may allow rights that are not
distributed or sold to lapse. In that case, you will receive no value for them.
If The Bank of New York Mellon makes rights available to you, upon instruction
from you, it will exercise the rights and purchase the shares on your behalf.
The Bank of New York Mellon will then deposit the shares and issue ADRs to
you.
It will only exercise rights if you pay it the exercise price and any other
charges the rights require you to pay.
U.S.
securities laws may restrict the sale, deposit, cancellation and transfer of
the
ADRs issued after exercise of rights. For example, you may not be able to trade
the ADRs freely in the U.S. In this case, The Bank of New York Mellon may issue
the ADRs under a separate restricted deposit agreement which will contain the
same provisions as the agreement, except for the changes needed to put the
restrictions in place.
Other
Distributions
.
The
Bank of New York Mellon will send to you anything else we distribute on
deposited securities by any means it thinks is legal, fair and practical. If
it
cannot make the distribution in that way, The Bank of New York Mellon has a
choice. It may decide to sell what we distributed and distribute the net
proceeds in the same way as it does with cash or it may decide to hold what
we
distributed, in which case the ADRs will also represent the newly distributed
property.
The
Bank
of New York Mellon is not responsible if it decides that it is unlawful or
impractical to make a distribution available to any ADR holders. We have no
obligation to register ADRs, shares, rights or other securities under the
Securities Act. We also have no obligation to take any other action to permit
the distribution of ADRs, shares, rights or anything else to ADR holders. This
means that you may not receive the distribution we make on our shares or any
value for them if it is illegal or impractical for us to make them available
to
you.
Deposit,
Withdrawal and Cancellation
The
Bank
of New York Mellon will issue ADRs if you or your broker deposit shares or
evidence of rights to receive shares with the custodian upon payment of its
fees
and expenses and of any taxes or charges, such as stamp taxes or stock transfer
taxes or fees. The Bank of New York Mellon will register the appropriate number
of ADRs in the names you request and will deliver the ADRs at its office to
the
persons you request.
You
may
turn in your ADRs at The Bank of New York Mellon’s office. Upon payment of its
fees and expenses and of any taxes or charges, such as stamp taxes or stock
transfer taxes or fees, The Bank of New York Mellon will deliver (1) the
underlying shares to an account designated by you and (2) any other deposited
securities underlying the ADR at the office of the custodian; or, at your
request, risk and expense, The Bank of New York Mellon will deliver the
deposited securities at its office.
Voting
Rights
You
may
instruct The Bank of New York Mellon to vote the shares underlying your ADRs
but
only if we ask The Bank of New York Mellon to ask for your instructions.
Otherwise, you won’t be able to exercise your right to vote unless you withdraw
the shares. However, you may not know about the meeting enough in advance to
withdraw the shares.
If
we ask
for your instructions, The Bank of New York Mellon will notify you of the
upcoming vote and arrange to deliver our voting materials to you. The materials
will (1) describe the matters to be voted on and (2) explain how you, on a
certain date, may instruct The Bank of New York Mellon to vote the shares or
other deposited securities underlying your ADRs as you direct. For instructions
to be valid, The Bank of New York Mellon must receive them on or before the
date
specified. The Bank of New York Mellon will try, as far as practical, subject
to
Israeli law and the provisions of our Articles of Association, to vote or to
have its agents vote the shares or other deposited securities as you instruct.
The Bank of New York Mellon will only vote or attempt to vote as you instruct.
However, if The Bank of New York Mellon does not receive your voting
instructions, it will deem you to have instructed it to give a discretionary
proxy to vote the shares underlying your ADRs to a person designated by us
provided that no such instruction shall be deemed given and no such
discretionary proxy shall be given with respect to any matter as to which we
inform The Bank of New York Mellon that (x) we do not wish such proxy given,
(y)
substantial opposition exists, (z) such matter materially affects the rights
of
the holders of the shares underlying the ADRs.
We
cannot
assure you that you will receive the voting materials in time to ensure that
you
can instruct The Bank of New York Mellon to vote your shares. In addition,
The
Bank of New York Mellon and its agents are not responsible for failing to carry
out voting instructions or for the manner of carrying out voting instructions.
This means that you may not be able to exercise your right to vote and there
may
be nothing you can do if your shares are not voted as you
requested.
Rights
of Non-Israeli Shareholders to Vote
Our
ADSs
may be freely held and traded pursuant to the General Permit and the Currency
Control Law. The ownership or voting of ADSs by non-residents of Israel are
not
restricted in any way by our Articles of Association or by the laws of the
State
of Israel.
Fees
and Expenses
|
ADR
holders must pay:
|
|
For:
|
|
$5.00
(or less) per 100 ADSs
(or
portion thereof)
|
|
Each
issuance of an ADS, including as a result of a distribution of shares
or
rights or other property.
Each
cancellation of an ADS, including if the agreement
terminates.
|
|
$0.02
(or less) per ADS
|
|
Any
cash payment.
|
|
|
|
|
|
Registration
or Transfer Fees
|
|
Transfer
and registration of shares on the share register of the Foreign Registrar
from your name to the name of The Bank of New York Mellon or its
agent
when you deposit or withdraw shares.
|
|
Expenses
of The Bank of New York Mellon
|
|
Conversion
of foreign currency to U.S. dollars.
Cable,
telex and facsimile transmission expenses.
Servicing
of shares or deposited securities.
|
|
$0.02
(or less) per ADS per calendar year (if the depositary has not collected
any cash distribution fee during that year)
|
|
Depositary
services.
|
|
Taxes
and other governmental charges
|
|
As
necessary The Bank of New York Mellon or the Custodian have to pay
on any
ADR or share underlying an ADR, for example, stock transfer taxes,
stamp
duty or withholding taxes.
|
|
A
fee equivalent to the fee that would be payable if securities distributed
to you had been ordinary shares and the ordinary shares had been
deposited
for issuance of ADSs
|
|
Distribution
of securities distributed to holders of deposited securities which
are
distributed by the depositary to ADR
holders.
|
Payment
of Taxes
You
will
be responsible for any taxes or other governmental charges payable on your
ADRs
or on the deposited securities underlying your ADRs. The Bank of New York Mellon
may refuse to transfer your ADRs or allow you to withdraw the deposited
securities underlying your ADRs until such taxes or other charges are paid.
It
may apply payments owed to you or sell deposited securities underlying your
ADRs
to pay any taxes owed and you will remain liable for any deficiency. If it
sells
deposited securities, it will, if appropriate, reduce the number of ADRs to
reflect the sale and pay to you any proceeds, or send to you any property,
remaining after it has paid the taxes.
Reclassifications,
Recapitalizations and Mergers
|
If
we:
|
|
Then:
|
|
Change
the nominal or par value of our shares;
|
|
The
cash, shares or other securities received by The Bank of New York
Mellon
will become deposited securities. Each ADR will automatically represent
its equal share of the new deposited securities. The Bank of New
York
Mellon may, and will if we ask it to, distribute some or all of the
cash,
shares or other securities it received. It may also issue new ADRs
or ask
you to surrender your outstanding ADRs in exchange for new ADRs,
identifying the new deposited securities.
|
|
Reclassify,
split up or consolidate any of the deposited securities;
|
|
|
Distribute
securities on the shares that are not distributed to you;
or
|
|
|
|
|
|
|
|
Recapitalize,
reorganize, merge, liquidate, sell all or substantially all of our
assets,
or takes any similar action.
|
|
|
Amendment
and Termination
We
may
agree with The Bank of New York Mellon to amend the agreement and the ADRs
without your consent for any reason. If the amendment adds or increases fees
or
charges, except for taxes and other governmental charges or registration fees,
cable, telex or facsimile transmission costs, delivery costs or other such
expenses, or prejudices an important right of ADR holders, it will only become
effective thirty days after The Bank of New York Mellon notifies you of the
amendment. At the time an amendment becomes effective, you are considered,
by
continuing to hold your ADR, to agree to the amendment and to be bound by the
ADRs and the agreement is amended.
The
Bank
of New York Mellon will terminate the agreement if we ask it to do so. The
Bank
of New York Mellon may also terminate the agreement if The Bank of New York
Mellon has told us that it would like to resign and we have not appointed a
new
depositary bank within ninety days. In both cases, The Bank of New York Mellon
must notify you at least ninety days before termination.
After
termination, The Bank of New York Mellon and its agents will be required to
do
only the following under the agreement: (1) advise you that the agreement is
terminated, and (2) collect distributions on the deposited securities and
deliver shares and other deposited securities upon cancellation of ADRs. After
termination, The Bank of New York Mellon will, if practical, sell any remaining
deposited securities by public or private sale. After that, The Bank of New
York
Mellon will hold the proceeds of the sale, as well as any other cash it is
holding under the agreement for the pro rata benefit of the ADR holders that
have not surrendered their ADRs. It will not invest the money and will have
no
liability for interest. The Bank of New York Mellon’s only obligations will be
to account for the proceeds of the sale and other cash. After termination our
only obligations will be with respect to indemnification and to pay certain
amounts to The Bank of New York Mellon.
Limitations
on Obligations and Liability to ADR Holders
The
agreement expressly limits our obligations and the obligations of The Bank
of
New York Mellon, and it limits our liability and the liability of The Bank
of
New York Mellon. We and The Bank of New York Mellon:
|
●
|
are
only obligated to take the actions specifically set forth in the
agreement
without negligence or bad faith;
|
|
●
|
are
not liable if either is prevented or delayed by law or circumstances
beyond their control from performing their obligations under the
agreement;
|
|
●
|
are
not liable if either exercises discretion permitted under the
agreement;
|
|
●
|
have
no obligation to become involved in a lawsuit or other proceeding
related
to the ADRs or the agreement on your behalf or on behalf of any other
party; and
|
|
●
|
may
rely upon any documents they believe in good faith to be genuine
and to
have been signed or presented by the proper
party.
|
In
the
agreement, we and The Bank of New York Mellon agree to indemnify each other
under certain circumstances.
Requirements
for Depositary Actions
Before
The Bank of New York Mellon will issue or register transfer of an ADR, make
a
distribution on an ADR, or make a withdrawal of shares, The Bank of New York
Mellon may require payment of stock transfer or other taxes or other
governmental charges and transfer or registration fees charged by third parties
for the:
|
●
|
transfer
of any shares or other deposited
securities;
|
|
●
|
production
of satisfactory proof of the identity and genuineness of any signature
or
other information it deems necessary,
and
|
|
●
|
compliance
with regulations it may establish, from time to time, consistent
with the
agreement, including presentation of transfer
documents.
|
The
Bank
of New York Mellon may refuse to deliver, transfer, or register transfers of
ADRs generally when the books of The Bank of New York Mellon or our books are
closed, or at any time if The Bank of New York Mellon or we think it advisable
to do so. You have the right to cancel your ADRs and withdraw the underlying
shares at any time except:
|
●
|
when
temporary delays arise because: (1) The Bank of New York Mellon or
we have
closed its transfer books; (2) the transfer of shares is blocked
to permit
voting at a shareholders’ meeting; or (3) we are paying a dividend on the
shares; or
|
|
●
|
when
it is necessary to prohibit withdrawals in order to comply with any
laws
or governmental regulations that apply to ADRs or to the withdrawal
of
shares or other deposited
securities.
|
This
right of withdrawal may not be limited by any other provision of the
agreement.
Pre-Release
of ADRs
In
certain circumstances, subject to the provisions of the agreement, The Bank
of
New York Mellon may issue ADRs before deposit of the underlying shares. This
is
called a pre-release of the ADR. The Bank of New York Mellon may also deliver
shares upon cancellation of pre-released ADRs (even if the ADRs are cancelled
before the pre-release transaction has been closed out). A pre-release is closed
out as soon as the underlying shares are delivered to The Bank of New York
Mellon. The Bank of New York Mellon may receive ADRs instead of shares to close
out a pre-release. The Bank of New York Mellon may pre-release ADRs only under
the following conditions: (1) before or at the time of the pre-release, the
person to whom the pre-release is being made must represent to The Bank of
New
York Mellon in writing that it or its customer owns the shares or ADRs to be
deposited; (2) the pre-release must be fully collateralized with cash or other
collateral that The Bank of New York Mellon considers appropriate; and (3)
The
Bank of New York Mellon must be able to close out the pre-release on not more
than five business days’ notice. In addition, The Bank of New York Mellon will
limit the number of ADRs that may be outstanding at any time as a result of
pre-release, although The Bank of New York Mellon may disregard the limit from
time to time, if it thinks it is appropriate to do so.
Inspection
of Books of the Depositary
Under
the
terms of the agreement, holders of ADRs may inspect the transfer books of the
depositary at any reasonable time, provided that such inspection shall not
be
for the purpose of communicating with holders of ADRs in the interest of a
business or object other than either our business or a matter related to the
deposit agreement or ADRs.
Book-Entry
Only Issuance - The Depository Trust Company
The
Depository Trust Company, or DTC, New York, New York, will act as securities
depository for the ADRs. The ADRs will be represented by one global security
that will be deposited with and registered in the name of Cede & Co. (DTC’s
partnership nominee), or such other name as may be requested by an authorized
representative of DTC. This means that we will not issue certificates to you
for
the ADRs. One global security will be issued to DTC, which will keep a
computerized record of its participants (for example, your broker) whose clients
have purchased the ADRs. Each participant will then keep a record of its
clients. Unless it is exchanged in whole or in part for a certificated security,
a global security may not be transferred. However, DTC, its nominees, and their
successors may transfer a global security as a whole to one another. Beneficial
interests in the global security will be shown on, and transfers of the global
security will be made only through, records maintained by DTC and its
participants.
DTC
is a
limited-purpose trust company organized under the New York Banking Law, a
“banking organization” within the meaning of the New York Banking Law, a member
of the United States Federal Reserve System, a “clearing corporation” within the
meaning of the New York Uniform Commercial Code and a “clearing agency”
registered under the provisions of Section 17A of the Exchange Act . DTC
holds securities that its participants (direct participants) deposit with DTC.
DTC also records the settlement among direct participants of securities
transactions, such as transfers and pledges, in deposited securities through
computerized records for direct participant’s accounts. This eliminates the need
to exchange certificates. Direct participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations.
DTC’s
book-entry system is also used by other organizations such as securities brokers
and dealers, banks and trust companies that work through a direct participant.
The rules that apply to DTC and its participants are on file with the
SEC.
DTC
is a
wholly-owned subsidiary of The Depository Trust & Clearing Corporation, or
DTCC. DTCC is, in turn, owned by a number of DTC’s direct participants and by
the New York Stock Exchange, Inc., the American Stock Exchange, Inc.
and the National Association of Securities Dealers, Inc.
When
you
purchase ADRs through the DTC system, the purchases must be made by or through
a
direct participant, who will receive credit for the ADRs on DTC’s records. Since
you actually own the ADRs, you are the beneficial owner and your ownership
interest will only be recorded on the direct (or indirect) participants’
records. DTC has no knowledge of your individual ownership of the ADRs. DTC’s
records only show the identity of the direct participants and the amount of
ADRs
held by or through them. You will not receive a written confirmation of your
purchase or sale or any periodic account statement directly from DTC. You will
receive these from your direct (or indirect) participant. Thus the direct (or
indirect) participants are responsible for keeping accurate account of the
holdings of their customers like you.
We
will
wire dividend payments to DTC’s nominee, and we will treat DTC’s nominee as the
owner of the global security for all purposes. Accordingly, we will have no
direct responsibility or liability to pay amounts due on the global security
to
you or any other beneficial owners in the global security.
Any
redemption notices will be sent by us directly to DTC, who will in turn inform
the direct participants, who will then contact you as a beneficial
holder.
It
is
DTC’s current practice, upon receipt of any payment of dividends or liquidation
amount, to credit direct participants’ accounts on the payment date based on
their holdings of beneficial interests in the global securities as shown on
DTC’s records. In addition, it is DTC’s current practice to assign any
consenting or voting rights to direct participants whose accounts are credited
with preferred securities on a record date, by using an omnibus proxy. Payments
by participants to owners of beneficial interests in the global securities,
and
voting by participants, will be based on the customary practices between the
participants and owners of beneficial interests, as is the case with the ADRs
held for the account of customers registered in “street name.” However, payments
will be the responsibility of the participants and not of DTC or
us.
ADRs
represented by a global security will be exchangeable for certificated
securities with the same terms in authorized denominations only if:
|
●
|
DTC
is unwilling or unable to continue as depositary or if DTC ceases
to be a
clearing agency registered under applicable law and a successor depositary
is not appointed by us within 90 days;
or
|
|
●
|
we
determine not to require all of the ADRs to be represented by a global
security.
|
If
the
book-entry only system is discontinued, the transfer agent will keep the
registration books for the ADRs at its corporate office.
The
information in this section concerning DTC and DTC’s book-entry system has been
obtained from sources we believe to be reliable, but we take no responsibility
for the accuracy thereof.
DESCRIPTION
OF
ORDINARY
SHARES
This
prospectus contains summary descriptions of our ordinary shares that our Selling
Shareholders may offer from time to time.
Rights
Attached to Ordinary Shares
Our
authorized share capital consists of 500,000,000 ordinary shares, par value
NIS
0.02 per share.
Holders
of ordinary shares have one vote per share, and are entitled to participate
equally in the payment of dividends and share distributions and, in the event
of
our liquidation, in the distribution of assets after satisfaction of liabilities
to creditors. No preferred shares are currently authorized. All outstanding
ordinary shares are validly issued and fully paid.
Transfer
of Shares
Fully
paid ordinary shares are issued in registered form and may be freely transferred
under our Articles of Association unless the transfer is restricted or
prohibited by another instrument or applicable securities laws.
Dividend
and Liquidation Rights
We
may
declare a dividend to be paid to the holders of ordinary shares according to
their rights and interests in our profits. In the event of our liquidation,
after satisfaction of liabilities to creditors, our assets will be distributed
to the holders of ordinary shares in proportion to the nominal value of their
holdings.
This
right may be affected by the grant of preferential dividend or distribution
rights, to the holders of a class of shares with preferential rights that may
be
authorized in the future. Under the Israeli Companies Law, the declaration
of a
dividend does not require the approval of the shareholders of the company,
unless the company's articles of association require otherwise. Our Articles
provide that the Board of Directors may declare and distribute dividends without
the approval of the shareholders.
Annual
and Extraordinary General Meetings
We
must
hold our annual general meeting of shareholders each year no later than 15
months from the last annual meeting, at a time and place determined by the
Board
of Directors, upon at least 21 days’ prior notice to our shareholders to which
we need to add additional three days for notices sent outside of Israel. A
special meeting may be convened by request of two directors, 25% of the
directors then in office, one or more shareholders holding at least 5% of our
issued share capital and at least 1% of our issued voting rights, or one or
more
shareholders holding at least 5% of our issued voting rights. Notice of a
general meeting must set forth the date, time and place of the meeting. Such
notice must be given at least 21 days but not more than 45 days prior to the
general meeting. The quorum required for a meeting of shareholders consists
of
at least two shareholders present in person or by proxy who hold or represent
between them at least one-third of the voting rights in the company. A meeting
adjourned for lack of a quorum generally is adjourned to the same day in the
following week at the same time and place (with no need for any notice to the
shareholders) or until such other later time if such time is specified in the
original notice convening the general meeting, or if we serve notice to the
shareholders no less than seven days before the date fixed for the adjourned
meeting. If at an adjourned meeting there is no quorum present half an hour
after the time set for the meeting, any number participating in the meeting
shall represent a quorum and shall be entitled to discuss the matters set down
on the agenda for the original meeting. All shareholders who are registered
in
our registrar on the record date, or who will provide us with proof of ownership
on that date as applicable to the relevant registered shareholder, are entitled
to participate in a general meeting and may vote as described in “Voting Rights”
and “Voting by Proxy and in Other Manners,” below.
Voting
Rights
Our
ordinary shares do not have cumulative voting rights in the election of
directors. As a result, the holders of ordinary shares that represent more
than
50% of the voting power represented at a shareholders meeting in which a quorum
is present have the power to elect all of our directors, except the external
directors whose election requires a special majority.
Holders
of ordinary shares have one vote for each ordinary share held on all matters
submitted to a vote of shareholders. Shareholders may vote in person or by
proxy. These voting rights may be affected by the grant of any special voting
rights to the holders of a class of shares with preferential rights that may
be
authorized in the future.
Under
the
Israeli Companies Law, unless otherwise provided in the Articles of Association
or by applicable law, all resolutions of the shareholders require a simple
majority. Our Articles of Association provide that all decisions may be made
by
a simple majority.
Voting
by Proxy and in Other Manners
Our
Articles of Association enable a shareholder to appoint a proxy, who need not
be
a shareholder, to vote at any shareholders meeting. We require that the
appointment of a proxy be in writing signed by the person making the appointment
or by an attorney authorized for this purpose, and if the person making the
appointment is a corporation, by a person or persons authorized to bind the
corporation. In the document appointing a proxy, each shareholder may specify
how the proxy should vote on any matter presented at a shareholders meeting.
The
document appointing the proxy shall be deposited in our offices or at such
other
address as shall be specified in the notice of the meeting not less than 48
hours before the time of the meeting at which the person specified in the
appointment is due to vote.
The
Israeli Companies Law and our Articles of Association do not permit resolutions
of the shareholders to be adopted by way of written consent, for as long as
our
ordinary shares are publicly traded.
Limitations
on the Rights to Own Securities
The
ownership or voting of ordinary shares by non-residents of Israel is not
restricted in any way by our Articles of Association or the laws of the State
of
Israel, except that nationals of countries which are, or have been, in a state
of war with Israel may not be recognized as owners of ordinary
shares.
Anti-Takeover
Provisions under Israeli Law
The
Israeli Companies Law permits merger transactions with the approval of each
party’s board of directors and shareholders. In accordance with the Israeli
Companies Law, a merger may be approved at a shareholders meeting by a majority
of the voting power represented at the meeting, in person or by proxy, and
voting on that resolution. In determining whether the required majority has
approved the merger, shares held by the other party to the merger, any person
holding at least 25% of the outstanding voting shares or means of appointing
the
board of directors of the other party to the merger, or the relatives or
companies controlled by these persons, are excluded from the vote.
Under
the
Israeli Companies Law, a merging company must inform its creditors of the
proposed merger. Any creditor of a party to the merger may seek a court order
blocking the merger, if there is a reasonable concern that the surviving company
will not be able to satisfy all of the obligations of the parties to the merger.
Moreover, a merger may not be completed until at least 30 days have passed
from
the time the merger was approved in a general meeting of each of the merging
companies, and at least 50 days have passed from the time that a merger proposal
was filed with the Israeli Registrar of Companies.
Israeli
corporate law provides that an acquisition of shares in a public company must
be
made by means of a tender offer if, as a result of such acquisition, the
purchaser would become a 25% or greater shareholder of the company. This rule
does not apply if there is already another shareholder with 25% or greater
shares in the company. Similarly, Israeli corporate law provides that an
acquisition of shares in a public company must be made by means of a tender
offer if, as a result of the acquisition, the purchaser's shareholdings would
entitle the purchaser to over 45% of the shares in the company, unless there
is
a shareholder with 45% or more of the shares in the company. These requirements
do not apply if, in general, the acquisition (1) was made in a private placement
that received the approval of the company’s shareholders; (2) was from a 25% or
greater shareholder of the company which resulted in the purchaser becoming
a
25% or greater shareholder of the company, or (3) was from a 45% or greater
shareholder of the company which resulted in the acquirer becoming a 45% or
greater shareholder of the company. These rules do not apply if the acquisition
is made by way of a merger. Regulations promulgated under the Israeli Companies
Law provide that these tender offer requirements do not apply to companies
whose
shares are listed for trading external of Israel if, according to the law in
the
country in which the shares are traded, including the rules and regulations
of
the stock exchange or which the shares are traded, either:
|
|
●
|
there
is a limitation on acquisition of any level of control of the company;
or
|
|
|
●
|
the
acquisition of any level of control requires the purchaser to do
so by
means of a tender offer to the
public.
|
The
Israeli Companies Law provides specific rules and procedures for the acquisition
of shares held by minority shareholders, if the majority shareholder holds
more
than 90% of the outstanding shares. If, as a result of an acquisition of shares,
the purchaser will hold more than 90% of a company’s outstanding shares, the
acquisition must be made by means of a tender offer for all of the outstanding
shares. If less than 5% of the outstanding shares are not tendered in the tender
offer, all the shares that the purchaser offered to purchase will be transferred
to it. The Israeli Companies Law provides for appraisal rights if any
shareholder files a request in court within three months following the
consummation of a full tender offer. If more than 5% of the outstanding shares
are not tendered in the tender offer, then the purchaser may not acquire shares
in the tender offer that will cause his shareholding to exceed 90% of the
outstanding shares of the company. Israeli tax law treats specified
acquisitions, including a stock-for-stock swap between an Israeli company and
a
foreign company, less favorably than does US tax law. These laws may have the
effect of delaying or deterring a change in control of us, thereby limiting
the
opportunity for shareholders to receive a premium for their shares and possibly
affecting the price that some investors are willing to pay for our
securities.
Rights
of Shareholders
Under
the
Israeli Companies Law, our shareholders have the right to inspect certain
documents and registers including the minutes of general meetings, the register
of shareholders and the register of substantial shareholders, any document
held
by us that relates to an act or transaction requiring the consent of the general
meeting as stated above under “-Approval of Certain Transactions,” our Articles
of Association and our financial statements, and any other document which we
are
required to file under the Israeli Companies Law or under any law with the
Registrar of Companies or the Israeli Securities Authority, and is available
for
public inspection at the Registrar of Companies or the Securities Authority,
as
the case may be.
If
the
document required for inspection by one of our shareholders relates to an act
or
transaction requiring the consent of the general meeting as stated above, we
may
refuse the request of the shareholder if in our opinion the request was not
made
in good faith, the documents requested contain a commercial secret or a patent,
or disclosure of the documents could prejudice our good in some other
way.
The
Israeli Companies Law provides that with the approval of the court any of our
shareholders or directors may file a derivative action on our behalf if the
court finds the action is a priori, to our benefit, and the person demanding
the
action is acting in good faith. The demand to take action can be filed with
the
court only after it is serviced to us, and we decline or omit to act in
accordance to this demand.
Enforceability
of Civil Liabilities
We
are
incorporated in Israel and some of our directors and officers and the Israeli
experts named in this report reside outside the US. Service of process upon
them
may be difficult to effect within the US. Furthermore, because substantially
all
of our assets, and those of our non-US directors and officers and the Israeli
experts named herein, are located outside the US, any judgment obtained in
the
US against us or any of these persons may not be collectible within the US.
We
have
been informed by our legal counsel in Israel, Kantor & Co., that there is
doubt as to the enforceability of civil liabilities under the Securities Act
or
the Exchange Act, pursuant to original actions instituted in Israel. However,
subject to particular time limitations, executory judgments of a US court for
monetary damages in civil matters may be enforced by an Israeli court, provided
that:
|
|
●
|
the
judgment was obtained after due process before a court of competent
jurisdiction, that recognizes and enforces similar judgments of Israeli
courts, and the court had authority according to the rules of private
international law currently prevailing in
Israel;
|
|
|
●
|
adequate
service of process was effected and the defendant had a reasonable
opportunity to be heard;
|
|
|
●
|
the
judgment is not contrary to the law, public policy, security or
sovereignty of the State of Israel and its enforcement is not contrary
to
the laws governing enforcement of
judgments;
|
|
|
●
|
the
judgment was not obtained by fraud and does not conflict with any
other
valid judgment in the same matter between the same
parties;
|
|
|
●
|
the
judgment is no longer appealable;
and
|
|
|
●
|
an
action between the same parties in the same matter is not pending
in any
Israeli court at the time the lawsuit is instituted in the foreign
court.
|
We
have
irrevocably appointed XTL Biopharmaceuticals, Inc., our US subsidiary, as our
agent to receive service of process in any action against us in any US federal
court or the courts of the State of New York.
Foreign
judgments enforced by Israeli courts generally will be payable in Israeli
currency. The usual practice in an action before an Israeli court to recover
an
amount in a non-Israeli currency is for the Israeli court to render judgment
for
the equivalent amount in Israeli currency at the rate of exchange in force
on
the date of the judgment. Under existing Israeli law, a foreign judgment payable
in foreign currency may be paid in Israeli currency at the rate of exchange
for
the foreign currency published on the day before date of payment. Current
Israeli exchange control regulations also permit a judgment debtor to make
payment in foreign currency. Pending collection, the amount of the judgment
of
an Israeli court stated in Israeli currency ordinarily may be linked to Israel’s
consumer price index plus interest at the annual statutory rate set by Israeli
regulations prevailing at that time. Judgment creditors must bear the risk
of
unfavorable exchange rates.
PLAN
OF DISTRIBUTION
The
Selling Shareholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
on any stock exchange, market or trading facility on which the shares are traded
or in private transactions. These sales may be at fixed or negotiated prices.
The Selling Shareholders may use any one or more of the following methods when
selling shares:
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal
to
facilitate the transaction;
|
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer
for its
account;
|
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
|
·
|
privately
negotiated transactions;
|
|
|
·
|
settlement
of short sales created after the date of the private
placement;
|
|
|
·
|
broker-dealers
may agree with the Selling Shareholders to sell a specified number
of such
shares at a stipulated price per
ADR;
|
|
|
·
|
a
combination of any such methods of sale;
and
|
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
Selling Shareholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus. Broker-dealers engaged
by
the Selling Shareholders may arrange for other brokers dealers to participate
in
sales. Broker-dealers may receive commissions or discounts from the Selling
Shareholders (or, if any broker-dealer acts as agent for the purchaser of
shares, from the purchaser) in amounts to be negotiated. The Selling
Shareholders do not expect these commissions and discounts to exceed what is
customary in the types of transactions involved.
The
Selling Shareholders may from time to time pledge or grant a security interest
in some or all of the shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell the shares from time to time under this prospectus, or under
an
amendment to this prospectus under Rule 424(b)(3) or other applicable provision
of the Securities Act amending the list of Selling Shareholders to include
the
pledgee, transferee or other successors in interest as Selling Shareholders
under this prospectus.
The
Selling Shareholders also may transfer the shares in other circumstances, in
which case the transferees, pledgees or other successors in interest will be
the
selling beneficial owners for purposes of this prospectus.
The
Selling Shareholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. The Selling Shareholders have informed
us
that none of them have any agreement or understanding, directly or indirectly,
with any person to distribute the shares.
We
are
required to pay all fees and expenses that we incur incident to the registration
of the shares. We have agreed to indemnify the Selling Shareholders against
certain losses, claims, damages and liabilities, including liabilities under
the
Securities Act.
INDEMNIFICATION
FOR LIABILITIES
LEGAL
MATTERS
Our
legal
advisers are Alston & Bird LLP, 90 Park Avenue, New York, New York 10016,
United States of America, and Kantor & Co., Oz House, 14 Abba Hilel Silver
(12th Floor), Ramat Gan 52506, State of Israel.
The
consolidated financial statements of XTL Biopharmaceuticals Ltd. as of December
31, 2007 and 2006, and for each of the years in the three-year period ended
December 31, 2007 and for the period from March 9, 1993 (inception) to December
31, 2007 included in this prospectus on Form S-8 have been so included in
reliance on the report of Kesselman & Kesselman, a member of
PricewaterhouseCoopers International Ltd., an independent registered public
accounting firm, Trade Tower, 25 Hamered Street, Tel Aviv 68125, Israel, except
with respect to the period from March 9, 1993 to December 31, 2000 which is
included in reliance on the report of Somekh Chaikin, a member firm of KPMG
International, an independent registered public accounting firm, KPMG Millennium
Tower, 17 Ha’arba’a Street, Tel Aviv, 64739, Israel, which reports are
incorporated by reference herein and upon the authority of said firms as experts
in auditing and accounting.
RE-OFFER
PROSPECTUS
October
28, 2008
5,000,000
Ordinary
Shares
XTL
Biopharmaceuticals Ltd.
INFORMATION
REQUIRED IN REGISTRATION STATEMENT
Item
3.
Incorporation
of Documents by Reference.
The
following documents filed with the Securities and Exchange Commission (the
“Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) are hereby incorporated by reference into this Registration
Statement:
|
|
(1)
|
The
Company’s Annual Report on Form 20-F for the year ended December 31, 2007;
|
|
|
(2)
|
The
Company’s Current Reports on Form 6-K filed with the Commission on May 28,
2008, June 30, 2008, August 5, 2008, August 14, 2008 (Film No. 081018968,
Film No. 081019092 and Film No. 081020491), August 15, 2008, August
28,
2008, October 7, 2008, October 10, 2008 and October 24, 2008;
and
|
|
|
(3)
|
The
description of the Company’s share capital, par value NIS 0.02 per share,
contained in the Registration Statement on Form F-1, filed with the
Commission on April 20, 2006 (File
333-133445
).
|
All
other
documents subsequently filed by the Company pursuant to Section 13(a), 13(c),
14
and 15(d) of the Exchange Act prior to the filing of a post-effective amendment
to this Registration Statement that indicates that all securities offered have
been sold or that deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and to
be
part hereof from the date of filing of such documents.
Any
statement contained in a document incorporated by reference herein and filed
prior to the filing hereof shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained
herein modifies or supersedes such statement, and any statement contained herein
or in any other document incorporated by reference herein shall be deemed to
be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in any other subsequently filed document which also
is incorporated by reference herein modifies or supersedes such statement.
Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration
Statement.
Item
6.
Indemnification
of Directors and Officers.
Israeli
law permits a company to insure an office holder in respect of liabilities
incurred by him or her as a result of an act or omission in the capacity of
an
office holder for:
|
|
·
|
a
breach of the office holder’s duty of care to the company or to another
person;
|
|
|
|
|
|
|
·
|
a
breach of the office holder’s fiduciary duty to the company, provided that
he or she acted in good faith and had reasonable cause to believe
that the
act would not prejudice the company; and
|
|
|
|
|
|
|
·
|
a
financial liability imposed upon the office holder in favor of another
person.
|
Moreover,
a company can indemnify an office holder for any of the following obligations
or
expenses incurred in connection with the acts or omissions of such person in
his
or her capacity as an office holder:
|
|
·
|
monetary
liability imposed upon him or her in favor of a third party by a
judgment,
including a settlement or an arbitral award confirmed by the court;
and
|
|
|
|
|
|
|
·
|
reasonable
litigation expenses, including attorneys’ fees, actually incurred by the
office holder or imposed upon him or her by a court, in a proceeding
brought against him or her by or on behalf of the company or by a
third
party, or in a criminal action in which he or she was acquitted,
or in a
criminal action which does not require criminal intent in which he
or she
was convicted; furthermore, a company can, with a limited exception,
exculpate an office holder in advance, in whole or in part, from
liability
for damages sustained by a breach of duty of care to the
company.
|
The
Company’s Articles of Association allow for insurance, exculpation and
indemnification of office holders to the fullest extent permitted by law. The
Company has entered into indemnification, insurance and exculpation agreements
with its directors and executive officers, following shareholder approval of
these agreements. The Company has directors’ and officers’ liability insurance
covering its officers and directors for a claim imposed upon them as a result
of
an action carried out while serving as an officer or director, for (a) the
breach of duty of care towards the Company or towards another person, (b) the
breach of fiduciary duty towards the Company, provided that the officer or
director acted in good faith and had reasonable grounds to assume that the
action would not harm the Company’s interests, and (c) a monetary liability
imposed upon him in favor of a third party.
Item
8.
Exhibits.
|
Exhibit Number
|
|
Description
|
|
|
|
|
|
4.1
|
|
Articles
of Association†
|
|
|
|
|
|
4.2
|
|
Form
of Share Certificate (including both Hebrew and English translations)
^
|
|
|
|
|
|
5.1
|
|
Opinion
of Kantor & Co. regarding legality of the ordinary
shares
|
|
|
|
|
|
23.1
|
|
Consent
of Kesselman & Kesselman, a member of PricewaterhouseCoopers
International Ltd., dated October 28, 2008
|
|
|
|
|
|
23.2
|
|
Consent
of Somekh Chaikin, a member firm of KPMG International, an independent
registered public accounting firm, dated October 28,
2008
|
|
|
|
|
|
23.3
|
|
Consent
of Kantor & Co. (included in Exhibit 5.1)
|
|
|
|
|
|
24.1
|
|
Power
of Attorney (included on signature
page)
|
|
†
|
Incorporated
by
reference from the registration statement on Form 20-F filed by
XTL
Biopharmaceuticals Ltd. with the Securities and Exchange Commission
on
July 14, 2005, as it may be amended or
restated.
|
|
^
|
Incorporated
by reference from the annual report on Form 20-F filed by XTL
Biopharmaceuticals Ltd. with the Securities and Exchange Commission
on
March 23, 2007, as it may be amended or
restated.
|
Item
9.
Undertakings
A.
Rule
415 Offering
|
|
(a)
|
The
undersigned registrant hereby
undertakes:
|
(1)
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i)
To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii)
To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii)
To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
(2)
That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities being offered therein, and the offering
of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3)
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
B.
Subsequent
Documents Incorporated by Reference
The
undersigned registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall
be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be
the initial bona fide offering thereof.
C.
Indemnification
of Officers, Directors and Controlling Persons
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of
such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the city of
New
York City, State of New York on this 28
th
day of
October, 2008.
|
XTL
BIOPHARMACEUTICALS LTD.
|
|
|
|
|
By:
|
/s/
Ron Bentsur
|
|
|
Ron
Bentsur
Chief
Executive Officer
|
POWER
OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that we, the undersigned officers and directors of XTL
Biopharmaceuticals Ltd. hereby severally constitute Ron Bentsur and Bill
Kessler, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement filed herewith and any
and all amendments to said Registration Statement, including any registration
statements filed pursuant to Rule 462(b), and generally to do all such things
in
our names and in our capacities as officers and directors to enable XTL
Biopharmaceuticals Ltd. to comply with the provisions of the Securities Act
of
1933, as amended, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signature as they may be signed
by our said attorneys, or any of them, to said Registration Statement and any
and all amendments thereto.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities indicated
as of October 28, 2008.
|
Signatures
|
|
Title
|
|
|
|
|
|
/s/
Michael S. Weiss
|
|
Chairman
of the Board of Directors
|
|
Michael
S. Weiss
|
|
|
|
|
|
|
|
/s/
Ron Bentsur
|
|
Chief
Executive Officer
|
|
Ron
Bentsur
|
|
|
|
|
|
|
|
/s/
Bill Kessler
|
|
Director
of Finance
|
|
Bill
Kessler
|
|
(principal
financial and accounting officer)
|
|
|
|
|
|
|
|
|
|
/s/
William J. Kennedy, Ph.D
|
|
Non
Executive Director
|
|
William
J. Kennedy, Ph.D
|
|
|
|
|
|
|
|
|
|
Non
Executive and External Director
|
|
Kenneth
J. Zuerblis
|
|
|
|
|
|
|
|
/s/
Jennifer L. Good
|
|
Non
Executive and External Director
|
|
Jennifer
L. Good
|
|
|
|
|
|
|
|
/s/
Ben Zion Weiner, Ph.D
|
|
Non
Executive Director
|
|
Ben
Zion Weiner, Ph.D
|
|
|
|
|
|
|
|
/s/
Samuel H. Rudman
|
|
Non-Executive
Director
|
|
Samuel
H. Rudman
|
|
|
|
|
|
|
|
/s/
Ron Bentsur
|
|
Authorized
U.S. Representative
|
|
Ron
Bentsur
|
|
|
EXHIBIT
INDEX
TO
REGISTRATION
STATEMENT ON FORM S-8
|
Exhibit Number
|
|
Description
|
|
|
|
|
|
5.1
|
|
Opinion
of Kantor & Co. regarding legality of the ordinary
shares
|
|
|
|
|
|
23.1
|
|
Consent
of Kesselman & Kesselman, a member of PricewaterhouseCoopers
International Ltd., dated October 28, 2008
|
|
|
|
|
|
23.2
|
|
Consent
of Somekh Chaikin, a member firm of KPMG International, independent
registered public accounting firm, dated October 28,
2008
|
|
|
|
|
|
23.3
|
|
Consent
of Kantor & Co. (included in Exhibit
5.1)
|
XTL Biopharmaceuticals (NASDAQ:XTLB)
Historical Stock Chart
From Oct 2024 to Nov 2024
XTL Biopharmaceuticals (NASDAQ:XTLB)
Historical Stock Chart
From Nov 2023 to Nov 2024
