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
001-36345
(Commission
File Number)
GALMED
PHARMACEUTICALS LTD.
(Exact
name of Registrant as specified in its charter)
c/o
Meitar Law Offices
16
Abba Hillel Silver Rd.,
Ramat
Gan, 5250608
(Address
of principal executive offices)
Indicate
by check mark whether the registrant files or will file annual reports under cover
Form
20-F or Form 40-F.
Form
20-F ☒ Form 40-F ☐
On
November 14, 2024, Galmed Pharmaceuticals Ltd. (the “Company”) entered into a Capital on Demand™ Sales Agreement (the
“Sales Agreement”) with JonesTrading Institutional
Services LLC, as sales agent (the “Sales Agent”), pursuant to which the Company may offer and sell, from time to time, to
or through the Sales Agent, ordinary shares, no par value per share (the “Ordinary Shares”), having an aggregate offering
price of up to gross sale proceeds of up to $8,100,000.
Any
sales of Ordinary Shares under the Sales Agreement will be made pursuant to a shelf registration statement on Form F-3 and the related
prospectus (File No. 333-283241) (the “Registration Statement”) filed by the Company with the Securities and Exchange
Commission (the “SEC”) on November 14, 2024, after such Registration Statement is declared effective by the Commission.
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 its normal trading and sales practices, applicable state and
federal law, rules and regulations and the rules of The Nasdaq Stock Market LLC 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 promulgated under the Securities Act of 1933, as amended, including sales made directly on or through The Nasdaq
Capital Market, or any other existing trading market for the Ordinary Shares, in negotiated transactions at market prices prevailing
at the time of sale or at prices related to such prevailing market prices and/or in any other method permitted by law.
The
offering pursuant to the Sales Agreement will terminate upon the earlier of (a) termination of the Sales Agreement as permitted therein,
and (b) mutual agreement by the parties. The Sales Agent’s obligation to sell Ordinary Shares under the Sales Agreement is 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 gross proceeds from the sale of the Ordinary Shares pursuant to the Sales Agreement 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 in connection with entering into the Sales Agreement. The Sales Agreement contains customary representations and warranties
and conditions to the sale of the Ordinary Shares pursuant thereto.
The
foregoing description of the Sales Agreement is not complete and is qualified in its entirety by reference to the full text of such agreement,
a copy of which is filed herewith as Exhibit 10.1 to this Report on Form 6-K and is incorporated herein by reference.
This
Report on Form 6-K shall not constitute an offer to sell, or the solicitation of an offer to buy, the Ordinary
Shares discussed herein, nor shall there be any offer, solicitation, or 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
Form 6-K is incorporated by reference into the Company’s Registration Statements on Form S-8 (Registration No. 333-206292
and 333-227441)
and the Company’s Registration Statements on Form F-3 (Registration No. 333-272722
and 333-283241).
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.
| |
Galmed
Pharmaceuticals Ltd. |
| |
|
|
| Date:
November 14, 2024 |
By: |
/s/
Allen Baharaff |
| |
|
Allen
Baharaff |
| |
|
President
and Chief Executive Officer |
Exhibit
10.1
Galmed
Pharmaceuticals Ltd.
Ordinary
Shares
(NIS
1.80 par value per share)
Capital
on Demand™ Sales Agreement
November
14, 2024
JonesTrading
Institutional Services LLC
325
Hudson Street., 6th Floor
New
York, NY 10013
Ladies
and Gentlemen:
Galmed
Pharmaceuticals Ltd., a company organized under the laws of the State of Israel (the “Company”), confirms its agreement
(this “Agreement”) with JonesTrading Institutional Services LLC (the “Agent”), as follows:
1.
Issuance and Sale of 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 through or to the Agent, as agent or principal, ordinary shares (the “Placement
Shares”) of the Company, NIS 1.80 par value per share (the “Ordinary Shares”), provided, however,
that in no event shall the Company issue or sell, through or to the Agent, Placement Shares for an aggregate gross sales proceeds that
would exceed (a) the dollar amount of the Ordinary Shares registered on the Registration Statement (as defined below), (b) the number
of authorized but unissued Ordinary Shares, or (c) the dollar amount of the Ordinary Shares permitted to be sold under Form F-3, including
General Instruction I.B.5 of Form F-3, or (iv) the dollar amount of the Ordinary Shares for which the Company has filed a Prospectus
or Prospectus Supplement (each as defined below) (the least of (i), (ii), (iii) and (iv), the “Maximum Amount”). 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 Agent
shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares hereunder will be effected pursuant
to the Registration Statement and at no earlier time than such time as the Registration Statement shall have been declared effective
by the Securities and Exchange Commission (the “Commission”), although nothing in this Agreement shall be construed
as requiring the Company to issue any Placement Shares.
As
of the date hereof, the Company has filed, or will file, in accordance with the provisions of the Securities Act of 1933, as amended,
and the rules and regulations thereunder (the “Securities Act”), 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, and the rules and regulations thereunder (the “Exchange Act”). The Company
has prepared a prospectus or prospectus supplement to the base prospectus included as part of the registration statement specifically
relating to the Placement Shares (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by
the Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement,
relating to the Placement Shares. Except where the context otherwise requires, such registration statement, and any post-effective amendment
thereto, 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 or deemed
to be a part of such registration statement pursuant to Rule 430B or 462(b) under the Securities Act or any subsequent registration statement
on Form F-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any Placement Shares, as a result of the
end of the three-year period described in Rule 415(a)(5) of the Securities Act, is herein called the “Registration Statement.”
The base prospectus, including all documents incorporated therein by reference, to the extent such information has not been superseded
or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the
Registration Statement, as it may be supplemented by one or more prospectus supplements, in the form in which such Prospectus Supplement
has most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, together with any then
issued Issuer Free Writing Prospectus (defined below), is herein called the “Prospectus.”
Any
reference herein to the Registration Statement, any Prospectus Supplement, the 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,
the 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,
Prospectus Supplement 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 in writing by the parties) of the number or dollar value
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 Trading 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 notifies the Company that 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, (iv) the Company issues a subsequent Placement Notice
with parameters superseding those of the earlier-dated Placement Notice, or (iv) this Agreement has been terminated under the provisions
of Section 12. 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.
Sale of Placement Shares by the Agent. Subject to the provisions of Section 5(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 Stock Market LLC (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 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 5(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) under the Securities Act, including sales made
directly on or through the Exchange or any other existing trading market for the Ordinary Shares, in negotiated transactions 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.
4.
Suspension of Sales.
(a)
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 facsimile transmission or
email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares;
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. Each party agrees that no such notice under this Section 4 shall be effective
against any other party unless it is made to one of the individuals named on Schedule 3 hereto as associated with such other party,
as such Schedule may be amended in writing 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.
5.
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 and the rules of the Exchange 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 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 or self-regulatory
organization 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 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 through no fault of the Agent, the Company agrees that in addition to and in no way limiting the rights and
obligations set forth in Section 10(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) and (ii) pay to the Agent (without duplication) any commission, discount, 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, the aggregate gross sales proceeds of Placement Shares sold pursuant
to this Agreement would exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, 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 and notified to the Agent in writing. Further, under no circumstances shall the Company cause or permit the aggregate
offering amount of Placement Shares sold pursuant to this Agreement to exceed the Maximum Amount. Notwithstanding anything to the contrary
contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 5 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.
6.
Representations and Warranties of the Company. Except as disclosed in the Registration Statement or Prospectus (including the
Incorporated Documents), 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), unless such representation, warranty or agreement specifies otherwise:
(a)
Registration Statement and Prospectus. As of the date of this Agreement and at each Applicable Time, 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 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 “GLMD.” 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. The
Company has not received any notification that the Commission or the Exchange is contemplating terminating such registration or listing.
Except as set forth in the Registration Statement and in the Prospectus, to the Company’s knowledge (following due inquiry), it
is in compliance with all applicable listing requirements of the Exchange. The Company has no reason to believe that it will not in the
foreseeable future continue to be in compliance with all such listing and maintenance requirements.
(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, or will not, at each Applicable Time 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 or supplement
thereto, on the date thereof and at each Applicable Time (defined below), did not and 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 Agent specifically for use in the
preparation thereof.
(c)
Conformity with 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 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 (subject, in the case of unaudited interim financial statements, to normal year-end audit adjustments);
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, except for (i) such adjustments to accounting standards and practices
as are noted therein, (ii) in the case of unaudited interim financial statements, to the extent such financial statements may not include
footnotes required by GAAP or may be condensed or summary statements, and (iii) such adjustments which will not be material, either individually
or in the aggregate); 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 the Commission) comply in
all material respects 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)
Subsidiaries. The subsidiaries set forth on Exhibit 8.1 to the Company’s most recent Annual Report on Form 20-F (collectively,
the “Subsidiaries”), are the Company’s only significant subsidiaries (as such term is defined in Rule 1-02 of
Regulation S-X promulgated by the Commission). Except as set forth in the Registration Statement and in the Prospectus, the Company owns,
directly or indirectly, all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance,
right of first refusal or other restriction, and all the equity interests of the Subsidiaries are validly issued and are fully paid,
nonassessable and free of preemptive and similar rights. No Subsidiary is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such Subsidiary’s capital stock, from repaying to the Company any
loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company
or any other Subsidiary of the Company.
(h)
No Violation or Default. Neither the Company nor any Subsidiary is (i) in violation of its charter or by-laws or similar 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 Subsidiary is a party or by which the Company or any Subsidiary is bound
or to which any of the property or assets of the Company or any Subsidiary 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, except, in the case of each
of clauses (ii) and (iii) above, for any such violation or default that would not, individually or in the aggregate, have a Material
Adverse Effect. To the Company’s knowledge, no other party under any material contract or other agreement to which it or any Subsidiary
is a party is in default in any respect thereunder where such default would have a Material Adverse Effect.
(i)
No Material Adverse Effect. Subsequent to the respective dates as of which information is given in the Registration Statement,
the Prospectus and the Free Writing Prospectuses, if any (including any document deemed incorporated by reference therein), there has
not been (i) any Material Adverse Effect or the occurrence of any development that the Company reasonably expects will result in a Material
Adverse Effect, (ii) any transaction which is material to the Company and the Subsidiaries taken as a whole, (iii) any obligation or
liability, direct or contingent (including any off-balance sheet obligations), incurred by the Company or any Subsidiary, which is material
to the Company and the Subsidiaries taken as a whole, (iv) any material change in the capital stock or outstanding long-term indebtedness
of the Company or any of its Subsidiaries (other than (A) the grant of awards under equity incentive plans, (B) changes in the number
of shares of outstanding ordinary shares due to exercise or conversion of securities exercisable for or convertible into ordinary shares
outstanding from time to time, (C) any repurchase of capital stock of the Company, (D) as a result of the sale of Placement Shares or
(E) other than as publicly reported or announced) or (v) any dividend or distribution of any kind declared, paid or made on the capital
stock of the Company or any Subsidiary, other than in each case above in the ordinary course of business or as otherwise disclosed in
the Registration Statement or Prospectus (including any document deemed incorporated by reference therein).
(j)
Capitalization. The issued and outstanding shares of the Company (i) have been validly issued, are fully paid and nonassessable
and, (ii) other than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights, rights of
first refusal or similar rights and (iii) were issued in compliance with the Companies Law and the Israeli Securities Law 5728-1968 (the
“Israeli Securities Law”). The Company has an authorized, issued and outstanding and fully diluted capitalization
as set forth in the Registration Statement and the Prospectus as of the dates referred to therein (other than the grant of securities
under the Company’s equity incentive plans, or changes in the number of outstanding ordinary shares of the Company due to the issuance
of shares upon the exercise or conversion of securities exercisable for, or convertible into, ordinary shares outstanding from time to
time) and such authorized capital stock conforms in all material respects to the description thereof set forth in the Registration Statement
and the Prospectus. The description of the securities of the Company in the Registration Statement and the Prospectus is complete and
accurate in all material respects. Except as disclosed in or contemplated by the Registration Statement or the Prospectus, as of the
date referred to therein, the Company does not have any outstanding options to purchase, or any rights or warrants to subscribe for,
or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments to issue or sell, any shares
of capital stock or other securities.
(k)
Authorization; Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform
the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal,
valid and binding agreement of the Company enforceable in accordance with its terms, except to the extent that (i) enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general
equitable principles; and (ii) the indemnification and contribution provisions of Section 10 hereof may be limited by federal or state
securities laws and public policy considerations in respect thereof.
(l)
Authorization of Placement 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.
(m)
No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator
or governmental or regulatory authority having jurisdiction over the Company is required for the execution, delivery and performance
by the Company this Agreement, the issuance and sale by the Company of the Placement Shares, except for such consents, approvals, authorizations,
orders and registrations or qualifications as may be required under applicable state securities laws or by the by-laws and rules of the
Financial Industry Regulatory Authority (“FINRA”) or the Exchange in connection with the sale of the Placement Shares
by the Agent.
(n)
No Preferential Rights. (i) No person, as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities
Act (each, a “Person”), has the right, contractual or otherwise, to cause the Company or any of its Subsidiaries to
issue or sell to such Person any Ordinary Shares or shares of any other capital stock or other securities of the Company or any of its
Subsidiaries (other than upon the exercise of options or warrants or the vesting of restricted stock units into ordinary shares), (ii)
no Person has any preemptive rights, resale rights, rights of first refusal, rights of co-sale, or any other rights (whether pursuant
to a “poison pill” provision or otherwise) to purchase any Ordinary Shares or shares of any other capital stock or other
securities of the Company or any of its Subsidiaries, (iii) no Person has the right to act as an underwriter or as a financial advisor
to the Company or any of its Subsidiaries in connection with the offer and sale of Ordinary Shares, and (iv) no Person has the right,
contractual or otherwise, to require the Company or any of its Subsidiaries to register under the Securities Act any Ordinary Shares
or shares of any other capital stock or other securities of the Company or any of its Subsidiaries, or to include any such shares or
other securities in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness
of the Registration Statement or the sale of the Placement Shares as contemplated thereby or otherwise , except for such rights as have
been or will be duly waived on or prior to the date hereof.
(o)
Independent Public Accountant. The Company’s accountants, whose report on the financial statements of the Company is filed
with the Commission as part of the Company’s most recent Annual Report on Form 20-F filed with the Commission and incorporated
by reference into the Registration Statement and the Prospectus, are and, during the periods covered by their report, were an independent
registered public accounting firm with respect to the Company within the meaning of the Securities Act and the Public Company Accounting
Oversight Board (United States). To the Company’s knowledge, the Company’s accountants are not in violation of the auditor
independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company.
(p)
Enforceability of Agreements. All agreements between the Company and third parties expressly referenced in the Prospectus, other
than such agreements that have expired by their terms or the termination of which is disclosed in documents filed by the Company on EDGAR,
are legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except
to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions of certain agreements may
be limited by federal or state securities laws or public policy considerations in respect thereof; except for any unenforceability that,
individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(q)
No Litigation. There are no legal, governmental or regulatory actions, suits or proceedings pending, nor, to the Company’s
knowledge, any legal, governmental or regulatory investigations, to which the Company or any Subsidiary is a party or to which any property
of the Company or any Subsidiary is the subject that, individually or in the aggregate, if determined adversely to the Company or any
Subsidiary, would have a Material Adverse Effect or materially and adversely affect the ability of the Company to perform its obligations
under this Agreement; to the Company’s knowledge, no such actions, suits or proceedings are threatened or contemplated by any governmental
or regulatory authority or threatened by others that, individually or in the aggregate, if determined adversely to the Company or any
Subsidiary, would reasonably be expected to have a Material Adverse Effect; and (i) there are no current or pending legal, governmental
or regulatory audits or investigations, actions, suits or proceedings that are required under the Securities Act to be described in the
Prospectus that are not so described; and (ii) there are no contracts or other documents that are required under the Securities Act to
be filed as exhibits to the Registration Statement that are not so filed.
(r)
Consents and Permits. The Company and its Subsidiaries have made all filings, applications and submissions required by, possesses
and is operating in compliance with, all approvals, licenses, certificates, certifications, clearances, consents, grants, exemptions,
marks, notifications, orders, permits and other authorizations issued by, the appropriate federal, state or foreign Governmental Authority
(including, without limitation, the United States Food and Drug Administration (the “FDA”), the United States Drug
Enforcement Administration or any other foreign, federal, state, provincial, court or local government or regulatory authorities including
self-regulatory organizations engaged in the regulation of clinical trials, pharmaceuticals, biologics or biohazardous substances or
materials) necessary for the ownership or lease of their respective properties or to conduct its businesses as described in the Registration
Statement and the Prospectus (collectively, “Permits”), except for such Permits the failure of which to possess, obtain
or make the same would not have a Material Adverse Effect; the Company and its Subsidiaries are in compliance with the terms and conditions
of all such Permits, except where the failure to be in compliance would not have a Material Adverse Effect; all of the Permits are valid
and in full force and effect, except where any invalidity, individually or in the aggregate, would not be reasonably expected to have
a Material Adverse Effect; and neither the Company nor any of its Subsidiaries has received any written notice relating to the limitation,
revocation, cancellation, suspension, modification or non-renewal of any such Permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course. To the extent required by applicable laws and regulations
of the FDA, the Company or the applicable Subsidiary has submitted to the FDA an Investigational New Drug Application or amendment or
supplement thereto for each clinical trial it has conducted or sponsored or is conducting or sponsoring; all such submissions were in
material compliance with applicable laws and rules and regulations when submitted and no material deficiencies have been asserted by
the FDA with respect to any such submissions.
(s)
Regulatory Filings; Clinical Studies. Except as disclosed in the Registration Statement and the Prospectus, neither the Company
nor any of its Subsidiaries has failed to file with the applicable governmental authorities (including, without limitation, the FDA,
or any foreign, federal, state, provincial or local governmental authority performing functions similar to those performed by the FDA)
any required filing, declaration, listing, registration, report or submission, except for such failures that, individually or in the
aggregate, would not have a Material Adverse Effect; except as disclosed in the Registration Statement and the Prospectus, 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 regulatory authority with respect to any such filings, declarations, listings, registrations, reports
or submissions, except for any deficiencies that, individually or in the aggregate, would not have a Material Adverse Effect. The Company
and its Subsidiaries have operated and currently is, in all material respects, in compliance with the United States Federal Food, Drug,
and Cosmetic Act, all applicable rules and regulations of the FDA and other federal, state, local and foreign governmental authority
exercising comparable authority. The Company has no knowledge of any studies, tests or trials not described in the Prospectus the results
of which reasonably call into question in any material respect the results of the studies, tests and trials described in the Prospectus.
To the Company’s knowledge, after due inquiry of its third party contract resource organizations, the preclinical studies and tests
and clinical trials described in the Prospectus were, and, if still pending, are being conducted in all material respects in accordance
with the experimental protocols, procedures and controls pursuant to, where applicable, accepted professional and scientific standards
for products or product candidates comparable to those being developed by the Company; the descriptions of such studies, tests and trials,
and the results thereof, contained in the Prospectus are accurate and complete in all material respects; the Company is not aware of
any tests, studies or trials not described in the Prospectus, the results of which reasonably call into question the results of the tests,
studies and trials described in the Prospectus; and the Company has not received any written notice or correspondence from the FDA or
any foreign, state or local Governmental Authority exercising comparable authority or any institutional review board or comparable authority
requiring the termination, suspension, clinical hold or material modification of any tests, studies or trials.
(t)
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.5 of Form F-3.
As of the close of trading on the Exchange on July 3, 2024, the aggregate market value of the outstanding voting and non-voting common
equity (as defined in Securities Act Rule 405) of the Company held by persons other than affiliates of the Company (pursuant to Securities
Act Rule 144, those that directly, or indirectly through one or more intermediaries, control, or are controlled by, or are under common
control with, the Company) (the “Non-Affiliate Shares”), was approximately $20.2 million (calculated by multiplying
(x) the highest price at which the common equity of the Company closed on the Exchange during the 60 days prior to the date of this Agreement
times (y) the number of Non-Affiliate Shares). 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.
(u)
No Material Defaults. Neither the Company nor any Subsidiary 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 reasonably be expected to 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
stock 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 reasonably be expected to have a Material Adverse Effect.
(v)
Certain Market Activities. Neither the Company, nor any of the Subsidiaries, nor any of their respective directors, officers or,
to the Company’s knowledge, controlling persons has taken, directly or indirectly, any action designed, or that has constituted
or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the Placement Shares. The Company has not engaged and will not
engage in any form of solicitation, advertising or other action constituting an offer or a sale under the Israeli Securities Law and
the regulations promulgated thereunder 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.
(w)
Broker/Dealer Relationships. Neither the Company, any of its Subsidiaries, nor any of the Company’s affiliates (i) is required
to register as a “broker” or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly
or indirectly through one or more intermediaries, controls or is a “person associated with a member” or “associated
person of a member” (within the meaning set forth in the FINRA Manual).
(x)
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.
(y)
Taxes. The Company and the Subsidiaries have filed all federal, state, local and foreign tax returns which have been required
to be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being
contested in good faith, except where the failure to file or pay would not have a Material Adverse Effect. Except as otherwise disclosed
in or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined adversely to the Company or
any Subsidiary which has had, individually or in the aggregate, a Material Adverse Effect. The Company has no knowledge of any federal,
state or other governmental tax deficiency, penalty or assessment which has been asserted or threatened against it which would reasonably
be expected to have a Material Adverse Effect.
(z)
Title to Real and Personal Property. The Company and its Subsidiaries have good and marketable title (and where applicable, in
fee simple) to all items of real property owned by them, good and valid title to all personal property described in the Registration
Statement or Prospectus as being owned by them, in each case free and clear of all liens, encumbrances and claims, except those matters
that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and any of its Subsidiaries
or (ii) would not, individually or in the aggregate, have a Material Adverse Effect. Any real or personal property described in the Registration
Statement or Prospectus as being leased by the Company and any of its Subsidiaries is held by them under valid, existing and enforceable
leases, except those that (A) do not materially interfere with the use made or proposed to be made of such property by the Company or
any of its Subsidiaries or (B) would not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect.
Each of the properties of the Company and its Subsidiaries complies with all applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and laws relating to access to such properties), except if and to the extent
disclosed in the Registration Statement or Prospectus or except for such failures to comply that would not, individually or in the aggregate,
reasonably be expected to interfere in any material respect with the use made and proposed to be made of such property by the Company
and its Subsidiaries or otherwise have a Material Adverse Effect. None of the Company or its subsidiaries has received from any governmental
authorities any notice of any condemnation of, or zoning change affecting, the properties of the Company and its Subsidiaries, and the
Company knows of no such condemnation or zoning change which is threatened, except for such that would not reasonably be expected to
interfere in any material respect with the use made and proposed to be made of such property by the Company and its Subsidiaries or otherwise
have a Material Adverse Effect, individually or in the aggregate.
(aa)
Intellectual Property. Except as disclosed in the Registration Statement and the Prospectus, the Company and its Subsidiaries
own, possess, license or have other rights to use all foreign and domestic patents, patent applications, trade and service marks, trade
and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, Internet domain names, know-how
and other intellectual property (collectively, the “Intellectual Property”), necessary for the conduct of their respective
businesses as now conducted and planned to be conducted except to the extent that the failure to own, possess, license or otherwise hold
adequate rights to use such Intellectual Property would not, individually or in the aggregate, have a Material Adverse Effect. Except
as disclosed in the Registration Statement and the Prospectus (i) there are no rights of third parties to any such Intellectual Property
owned by the Company and its Subsidiaries; (ii) to the Company’s knowledge, there is no infringement by third parties of any such
Intellectual Property; (iii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others challenging the Company’s and its Subsidiaries’ rights in or to any such Intellectual Property, and the Company is
unaware of any facts which could form a reasonable basis for any such action, suit, proceeding or claim; (iv) there is no pending or,
to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of any such
Intellectual Property; (v) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others that the Company and its Subsidiaries infringe or otherwise violate any patent, trademark, copyright, trade secret or other proprietary
rights of others; (vi) to the Company’s knowledge (after due inquiry), there is no third-party U.S. patent or published U.S. patent
application which contains claims for which an Interference Proceeding (as defined in 35 U.S.C. § 135) has been commenced against
any patent or patent application described in the Prospectus as being owned by or licensed to the Company; and (vii) the Company and
its Subsidiaries have complied with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company
or such Subsidiary, and all such agreements are in full force and effect, except, in the case of any of clauses (i)-(vii) above, for
any such infringement by third parties or any such pending or threatened suit, action, proceeding or claim as would not, individually
or in the aggregate, result in a Material Adverse Effect.
(bb)
Environmental Laws. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries (i)
are in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders relating
to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”); (ii) have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their respective businesses as described in the Registration
Statement and the Prospectus; and (iii) have not received notice of any actual or potential liability for the investigation or remediation
of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except, in the case of any of clauses
(i), (ii) or (iii) above, for any such failure to comply or failure to receive required permits, licenses, other approvals or liability
as would not, individually or in the aggregate, have a Material Adverse Effect.
(cc)
Disclosure Controls. The Company maintains systems of internal accounting controls compliant in all material respects with all
applicable Laws (including the Israeli Securities Law and the Exchange Act) and sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. The Company’s internal control over financial reporting is effective and the Company is not aware of any material
weaknesses in its and its Subsidiaries internal control over financial reporting (other than as set forth in the Prospectus). Since the
date of the latest audited financial statements of the Company included in the Prospectus, there has been no change in the Company’s
nor in its Subsidiaries internal control over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s or such Subsidiary internal control over financial reporting (other than as set forth in the Prospectus).
The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for the Company (and
any applicable Subsidiary) and designed such disclosure controls and procedures to ensure that material information relating to the Company
and each of its Subsidiaries is made known to the certifying officers by others within those entities, particularly during the period
in which the Company’s Annual Report on Form 20-F or Current Report on Form 6-K containing unaudited quarterly financial statements,
as the case may be, is being prepared. The Company’s certifying officers have evaluated the effectiveness of the Company’s
disclosure controls and procedures as of a date within 90 days prior to the filing date of the Annual Report on Form 20-F for the fiscal
year most recently ended (such date, the “Evaluation Date”). The Company presented in its Annual Report on
Form 20-F for the fiscal year most recently ended the conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date and the disclosure controls and procedures are effective.
Since the Evaluation Date, there have been no significant changes in the Company’s internal controls (as such term is defined in
Item 307(b) of Regulation S-K under the Securities Act) or, to the Company’s knowledge, in other factors that could significantly
affect the Company’s internal controls.
(dd)
Sarbanes-Oxley. There is and has been 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 provisions of the Sarbanes-Oxley Act and the applicable rules and regulations
promulgated thereunder in all material respects. Each of the principal executive officer and the principal financial officer of the Company
(or each former principal executive officer of the Company and each former principal financial officer of the Company as applicable)
has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms,
statements and other documents required to be filed by it or furnished by it to the Commission during the 12 months prior to the date
of this Agreement. For purposes of the preceding sentence, “principal executive officer” and “principal financial officer”
shall have the meanings given to such terms in the Sarbanes-Oxley Act.
(ee)
Finder’s Fees. Neither the Company nor any Subsidiary has incurred any liability for any finder’s fees, brokerage
commissions or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to
Agent pursuant to this Agreement.
(ff)
Labor Disputes. No labor disturbance by or dispute with employees of the Company or any Subsidiary exists or, to the knowledge
of the Company, is threatened which would have a Material Adverse Effect
(gg)
Investment Company Act. Neither the Company or any Subsidiary is or, after giving effect to the offering and sale of the Placement
Shares, will it be an “investment company” or an entity “controlled” by an “investment company,”
as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(hh)
Operations. The operations of the Company and the Subsidiaries are and have been conducted at all times in compliance with applicable
financial record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions to which the Company or the Subsidiaries are subject, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the
“Money Laundering Laws”), except as would not have a Material Adverse Effect; and no action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect
to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ii)
Off-Balance Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company,
and/or any of its affiliates and any unconsolidated entity, including, but not limited to, any structural finance, special purpose or
limited purpose entity (each, an “Off-Balance Sheet Transaction”) that could reasonably be expected to affect materially
the Company’s liquidity or the availability of or requirements for its capital resources, including those Off-Balance Sheet Transactions
described in the Commission’s Statement about Management’s Discussion and Analysis of Financial Conditions and Results of
Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Prospectus which have not been described as required.
(jj)
Other 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.
(kk)
ERISA. To the knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 102 of the Israeli Income Tax Ordinance (the
“Israeli Code”), that is maintained, administered or contributed to by the Company or any of its affiliates for employees
or former employees of the Company and any of its Subsidiaries has been maintained in material compliance with its terms and the requirements
of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Internal Revenue Code of 1986,
as amended (the “Code”) as well as the Israeli Code; no prohibited transaction, within the meaning of Section 406
of ERISA or Section 4975 of the Code, and no breach of Section 102 of the Israeli Code has occurred which would result in a material
liability to the Company with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption;
and for each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value of
the assets of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial assumptions.
(ll)
Forward Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) (a “Forward Looking Statement”) contained in the Registration Statement and the Prospectus
has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith and been prepared in accordance
with Item 10 of Regulation S-K under the Securities Act.
(mm)
Agent Purchases. The Company acknowledges and agrees that Agent has informed the Company that the Agent may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell Ordinary Shares for its own account while this Agreement is in effect,
provided, that (i) no such purchase or sales shall take place while a Placement Notice is in effect (except to the extent the Agent may
engage in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar
capacity) and (ii) the Company shall not be deemed to have authorized or consented to any
such purchases or sales by the Agent.
(nn)
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 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.
(oo)
Insurance. The Company and the Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the
Company and the Subsidiaries reasonably believe is adequate for the conduct of their business and as is customary for companies of similar
size engaged in similar businesses in similar industries.
(pp)
No Improper Practices. (i) Neither the Company nor the Subsidiaries, nor any director, officer, or employee of the Company or
any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary
has, in the past five years, made any unlawful contributions to any candidate for any political office (or failed fully to disclose any
contribution in violation of applicable law) or made any contribution or other payment to any official of, or candidate for, any federal,
state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation of any applicable law
or of the character required to be disclosed in the Prospectus; (ii) no relationship, direct or indirect, exists between or among the
Company or any Subsidiary or any affiliate of any of them, on the one hand, and the directors, officers and stockholders of the Company
or any Subsidiary, on the other hand, that is required by the Securities Act to be described in the Registration Statement and the Prospectus
that is not so described; (iii) no relationship, direct or indirect, exists between or among the Company or any Subsidiary or any affiliate
of them, on the one hand, and the directors, officers, or stockholders of the Company or any Subsidiary, on the other hand, that is required
by the rules of FINRA or the Israeli Securities Law to be described in the Registration Statement and the Prospectus that is not so described;
(iv) except as described in the Registration Statement and the Prospectus, there are no material outstanding loans or advances or material
guarantees of indebtedness by the Company or any Subsidiary to or for the benefit of any of their respective officers or directors or
any of the members of the families of any of them; and (v) the Company has not offered, or caused any placement agent to offer, Ordinary
Shares to any person with the intent to influence unlawfully (A) a customer or supplier of the Company or any Subsidiary to alter the
customer’s or supplier’s level or type of business with the Company or any Subsidiary or (B) a trade journalist or publication
to write or publish favorable information about the Company or any Subsidiary or any of their respective products or services, and, (vi)
neither the Company nor any Subsidiary nor any director, officer or employee of the Company or any Subsidiary nor, to the Company’s
knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary has (A) violated or is in violation
of any applicable provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption
law (collectively, “Anti-Corruption Laws”), (B) promised, offered, provided, attempted to provide or authorized the provision
of anything of value, directly or indirectly, to any person for the purpose of obtaining or retaining business, influencing any act or
decision of the recipient, or securing any improper advantage; or (C) made any payment of funds of the Company or any Subsidiary or received
or retained any funds in violation of any Anti-Corruption Laws.
(qq)
Status Under the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under the Securities
Act at the times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the Placement Shares.
(rr)
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 (as defined below), through the consummation of the Placement for which such Issuer Free Writing Prospectus
is used or deemed used, 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 written information furnished to the Company by the Agent specifically for use therein.
(ss)
No Conflicts. Neither the execution of this Agreement by the Company, nor the issuance, offering or sale of the Placement Shares,
nor the consummation of any of the transactions contemplated herein and therein, nor the compliance by the Company with the terms and
provisions hereof and thereof will conflict with, or will result in a breach of, any of the terms and provisions of, or has constituted
or will constitute a default under, or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its Subsidiaries pursuant to the terms of any contract or other agreement to which
the Company or any of its Subsidiaries may be bound or to which any of the property or assets of the Company or any of its Subsidiaries
is subject, except (i) such conflicts, breaches or defaults as may have been waived and (ii) such conflicts, breaches and defaults that
would not have a Material Adverse Effect; nor will such action result (x) in any violation of the provisions of the organizational or
governing documents of the Company or any of its Subsidiaries, or (y) in any material violation of the provisions of any statute or any
order, rule or regulation applicable to the Company or any of its Subsidiaries or of any Governmental Authority having jurisdiction over
the Company or any of its Subsidiaries.
(tt)
Sanctions. (i) The Company represents that, neither it nor any Subsidiary (collectively, the “Entity”) nor,
any director, officer, employee, nor to the Entity’s knowledge, any agent, affiliate or representative of the Entity, is a government,
individual, or entity (in this paragraph (tt), “Covered Person”) that is, or is owned or controlled by a Covered Person
that is:
(A)
the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively,
“Sanctions”), nor
(B)
located, organized or resident in a country or territory that is the subject of Sanctions administered by OFAC.
(ii)
The Entity represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other Covered Person:
(A)
to fund or facilitate any activities or business of or with any Covered Person or in any country or territory that, at the time of such
funding or facilitation, is the subject of Sanctions; or
(B)
in any other manner that will result in a violation of Sanctions by any Covered Person (including any Covered Person participating in
the offering, whether as underwriter, advisor, investor or otherwise).
(iii)
The Entity represents and covenants that, except as detailed in the Prospectus, for the past 5 years, it has not knowingly engaged in,
is not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any Covered Person, or in any country
or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(uu)
Stock Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) which are required
to be paid in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully paid
or provided for by the Company and all laws imposing such taxes will be or will have been fully complied with in all material respects.
(vv)
Stamp Tax. No Israeli stamp or other Israeli issuance or transfer taxes or similar Israeli issuance or transfer duties and assuming
that the Agent is not otherwise subject to taxation in Israel due to Israeli tax residence, the existence of a permanent establishment
in Israel, a fixed place of business in Israel or any business activity of the Agent in Israel, no capital gains, income, withholding
or other taxes are payable in Israel by or on behalf of the Agent in connection with the sale and delivery by the Company of the Placement
Shares to or for the account of the Agent or the sale and delivery by the Agent of the Placement Shares to the purchasers thereof.
(ww)
Compliance with Laws. Each of the Company and its Subsidiaries: (A) is and at all times has been in compliance with all statutes,
rules, or regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing,
labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed by the Company
or its Subsidiaries (“Applicable Laws”), except as could not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect; (B) has not received any FDA Form 483, notice of adverse finding, warning letter, untitled letter
or other correspondence or notice from the FDA or any other governmental authority alleging or asserting noncompliance with any Applicable
Laws or any licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required by
any such Applicable Laws (“Authorizations”); (C) possesses all material Authorizations and such Authorizations are
valid and in full force and effect and are not in material violation of any term of any such Authorizations; (D) has not received notice
of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any governmental authority
or third party alleging that any product operation or activity is in violation of any Applicable Laws or Authorizations and has no knowledge
that any such governmental authority or third party is considering any such claim, litigation, arbitration, action, suit, investigation
or proceeding; (E) has not received notice that any governmental authority has taken, is taking or intends to take action to limit, suspend,
modify or revoke any Authorizations and has no knowledge that any such governmental authority is considering such action; (F) has filed,
obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements
or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments were complete and correct on the date filed (or were corrected or supplemented
by a subsequent submission); and (G) has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated,
conducted or issued, any recall, market withdrawal or replacement, safety alert, post sale warning, “dear healthcare provider”
letter, or other notice or action relating to the alleged lack of safety or efficacy of any product or any alleged product defect or
violation and, to the Company’s knowledge, no third party has initiated, conducted or intends to initiate any such notice or action.
(xx)
Statistical and Market-Related Data. The statistical, demographic and market-related data included in the Registration Statement
and Prospectus are based on or derived from sources that the Company believes to be reliable and accurate or represent the Company’s
good faith estimates that are made on the basis of data derived from such sources.
(yy)
Cybersecurity & Protection of Personal Data. 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 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” (defined below) and all sensitive, confidential
or regulated data (“Confidential Data”) used in connection with their businesses except as would not, individually
or in the aggregate for all such matters have a Material Adverse Effect. “Personal Data” includes (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 or applicable Israeli laws; (iv) any information which would qualify as “protected health information”
under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and
Clinical Health Act (collectively, “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 court or arbitrator or governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of IT Systems, Confidential Data (including confidential data of third parties),
and Personal Data and to the protection of such IT Systems, Confidential Data, and Personal Data from unauthorized use, access, misappropriation
or modification.
(zz)
Compliance with Data Privacy Laws. The Company and its Subsidiaries are, and at all prior times were, in compliance in all material
respects with all applicable state and federal data privacy and security laws and regulations, including without limitation HIPAA, CCPA,
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 has in place, complies with, and takes 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 subsidiary: (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, except in the case of the foregoing (i),
(ii) and (iii) as would not, individually or in the aggregate, have a Material Adverse Effect.
(aaa)
Reserved.
(bbb)
Stabilization. The Company has not taken, nor will it take, directly or indirectly, any action designed to, or which might reasonably
be expected to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the Ordinary Shares or any security of the Company to facilitate the sale or resale of any of the Placement
Shares.
(ccc)
Governmental Grants. Except as set forth in the Registration Statement and the Prospectus, neither the Company nor its Subsidiary
has received any grant from the Israel Innovation Authority of the Ministry of Economy and Industry of the State of Israel (formerly
known as the Office of the Chief Scientist) (the “IIA”) or any other Israeli governmental or regulatory authority,
including the Investment Center of the Ministry of Economy and Industry of the State of Israel. Neither the Company nor its Subsidiary
has received any notice denying, revoking or modifying any “Approved Enterprise,” “Benefited Enterprise,” “Preferred
Enterprise,” “Preferred Technology Enterprise” or “Special Preferred Technology Enterprise” status or benefits
with respect to any of the Company’s facilities or operations (collectively and together with the grants approved or received by
the IIA, the “Governmental Grant”). No event has occurred, and no circumstance or condition exists, that would reasonably
be expected to give rise to or serve as the basis for (i) the annulment, revocation, withdrawal, suspension, cancellation, recapture
or modification of the Governmental Grant, (ii) the imposition of any material limitation on the Governmental Grant or (iii) a requirement
that the Company return or refund any benefits provided under the Governmental Grant. All information supplied by the Company with respect
to the applications or notifications relating to Governmental Grant was true, correct and complete in all material respects when supplied
to the appropriate authorities.
(ddd)
Choice of Law. 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 18 of this Agreement, has validly and irrevocably
submitted to the personal jurisdiction of each State and Federal Court Sitting In The City of New York, Borough of Manhattan. Subject
to the conditions and qualifications set forth in the Registration Statement and the Prospectus, a final and conclusive judgment against
the Company for a definitive sum of money entered by any court in the United States may be enforced by an Israeli court. Neither the
Company nor its properties or assets has immunity under the State of Israel, U.S. federal or New York state law from any legal action,
suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from set-off or counterclaim, from the
jurisdiction of the State of Israel, U.S. federal or New York state court, from service of process, attachment upon or prior to judgment,
or attachment in aid of execution of judgment, or from execution of a judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of a judgment, in any such court with respect to their respective obligations, liabilities or any other
matter under or arising out of or in connection herewith; and, to the extent that the Company or any of its properties, assets or revenues
may have or may hereafter become entitled to any such right of immunity in any such court in which proceedings arising out of, or relating
to the transactions contemplated by this Agreement, may at any time be commenced, the Company has, pursuant to this Agreement, waived,
and it will waive such right to the extent permitted by law.
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.
7.
Covenants of the Company. The Company covenants and agrees with 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 related to the transactions
contemplated by this Agreement, (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, other than documents incorporated by reference, 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 has not
objected thereto (provided, however, that (A) 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; (B) the Company has no obligation to provide the Agent any advance copy of such filing or to provide Agent
an opportunity to object to such filing if the filing does not name the Agent or does not relate to or otherwise affect the transactions
contemplated by this Agreement; and (C) 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 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 7(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 use its commercially
reasonable efforts to 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 commercially
reasonable 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; provided, however, that the Company
may delay the filing of any amendment or supplement, if in the judgment of the Company, it is in the best interests of the Company.
(d)
Listing of Placement Shares. Prior to the date of the first Placement Notice, the Company will use its commercially reasonable
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 its counsel (at the reasonable 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 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 Agent’s reasonable 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 or their counsel 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 earning statement covering a 12-month period
that satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act, provided that the Company will be deemed to have furnished
such statements to its security holders to the extent they are filed with the Commission on EDGAR.
(g)
Use of Proceeds. The Company will use the Net 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, (A) 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 date on which any Placement Notice is delivered to the Agent hereunder
and ending on 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); and (B) 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
or sold pursuant to this Agreement or Ordinary Shares offered or sold pursuant to an equity line transaction) or securities convertible
into or exchangeable for Ordinary Shares, warrants or any rights to purchase or acquire, Ordinary Shares prior to 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, restricted stock units, options to purchase Ordinary Shares, warrants to purchase Ordinary Shares or
Ordinary Shares issuable upon the exercise of options or warrants or the vesting of any of the foregoing, pursuant to any 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 from time to time or otherwise in writing to the Agent, and (iii) Ordinary Shares or securities convertible
into or exchangeable for Ordinary Shares issued in privately negotiated transactions to vendors, customers or other commercial or strategic
partners or potential commercial or strategic partners, 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 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 (x) its Annual Report on Form 20-F and
(y) any Periodic Report on Form 6-K under which the Company furnishes its quarterly results of operations for the prior quarter, in each
case to be filed by the Company with, or furnished by the Company to, the Commission from time to time, 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 and the fourth quarter of such fiscal year (in the case of an Annual Report on Form 20-F) or
the relevant quarter (in the case of a Periodic Report on Form 6-K in which the Company furnishes its quarterly results of operations
for the relevant quarter). The Company agrees that on such dates as the Securities Act shall require with respect to the Placement Shares,
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)
files its quarterly results of operations 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 Form 6-K is material) with a certificate within five (5) Trading Days of each Representation Date, in the form attached hereto
as Exhibit 7(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 7(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 7(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 7(l) dated as of
the date that the instructions for the sale of Placement Shares are issued.
(m)
Opinions and Negative Assurance 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 7(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 each of Greenberg Traurig, P.A. (“Company U.S. Counsel”), and Meitar | Law Offices (“Company Israeli
Counsel”) and (ii) a negative assurance letter of Company U.S. Counsel, each in form and substance reasonably satisfactory
to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided, that 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 7(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; Officers’ Certificate. (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 7(l)
for which no waiver is applicable and excluding the date of this Agreement, the Company shall cause 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 7(o); provided, that if requested by the Agent, the Company shall
cause a Comfort Letter to be furnished to the Agent within ten (10) Trading Days of the date of occurrence of any material transaction
or event, 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 reasonably satisfactory to the Agent, (i) confirming that they are
an independent registered public accounting firm within the meaning of the Securities Act and the 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. Additionally, at the time any Comfort Letter is delivered, the Chief Financial Officer,
Chief Executive Officer or Principal Financial Officer of the Company shall deliver to the Agent a certificate, in form and substance
reasonably satisfactory to the Agent, relating to any financial information included or incorporated by reference in the Registration
Statement and Prospectus for which comfort is not provided in the Comfort Letter.
(o)
Market Activities. 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; provided, however, that the Company may bid for
and purchase Ordinary Shares in accordance with Rule 10b-18 under the Exchange Act.
(p)
Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any
Subsidiary will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term
is defined in the Investment Company Act, assuming no change in the Commission’s current
interpretation as to entities that are not considered an investment company.
(q)
No Offer to Sell. Other than the Prospectus and the 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 generally accepted accounting principles
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 generally accepted
accounting principles, (iii) that 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.
(u)
Intellectual Property Certificate. (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 7(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 certificate
certifying to certain intellectual property matters of the Company, in form and substance satisfactory to counsel for the Agent, and
attested to by an executive officer of the Company, dated as of such date. The requirement to provide a certificate under this Section
7(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 7(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 7(l) dated as of the date that the instructions for
the sale of Placement Shares are issued.
8.
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 reasonable fees and expenses of the Agent including
but not limited to the reasonable fees and expenses of the counsel to the Agent, payable upon the execution of this Agreement, in an
amount not to exceed (a) $50,000 in connection with the execution of this Agreement, (b) in an amount not to exceed $2,500 per calendar
quarter thereafter payable in connection with each Representation Date with respect to which the Company is obligated to deliver a certificate
pursuant to Section 7(l) for which no waiver is applicable excluding the date of this Agreement, and (c) $15,000 for each program “refresh”
(i.e. filing of a new registration statement, prospectus or prospectus supplement relating to the Placement Shares and/or an amendment
of this Agreement) executed pursuant to this Agreement, (vi) 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,
(vii) the fees and expenses of the transfer agent and registrar for the Ordinary Shares, (viii) 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.
9.
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 its sole discretion) of the following additional conditions:
(a)
Registration Statement Effective. The Registration Statement shall have become effective and shall be available for the 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 material document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in the Registration
Statement, the Prospectus or Incorporated Documents so that, in the case of the Registration Statement, it will not contain any materially
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 any materially 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, 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 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 the negative assurance letter required to be delivered pursuant
to Section 7(m) on or before the date on which such delivery of such opinion and letter, as applicable, is required pursuant to Section
7(n).
(f)
Comfort Letter. The Agent shall have received the Comfort Letter required to be delivered pursuant to Section 7(o) on or before
the date on which such delivery of such Comfort Letter is required pursuant to Section 7(o).
(g)
Representation Certificate. The Agent shall have received the certificate required to be delivered pursuant to Section 7(l) on
or before the date on which delivery of such certificate is required pursuant to Section 7(l).
(h)
Secretary’s Certificate. On the date of this Agreement, the Agent shall have received a certificate, signed on behalf of
the Company by its corporate Secretary, in form and substance reasonably satisfactory to the Agent and its counsel.
(i)
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.
(j)
Other Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(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.
(k)
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.
(l)
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.
(m)
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.
(n)
No Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant
to Section 12(a).
10.
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 agency or body, 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 10(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 agency or body, 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), of the Company 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 10(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 8th 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 10 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 10, 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 10 and (ii) any liability that it may have to any indemnified party under
the foregoing provision of this Section 10 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 and documented 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 and documented fees, disbursements and other charges of counsel will be at the expense
of the indemnifying party or parties. It is understood that 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 after the indemnifying party receives
a written invoice relating fees, disbursements and other reasonable charges in reasonable detail. 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 10 (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)
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 10 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 and documented 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, if any,
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 10(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 10(e) shall be deemed to include, for the purpose of this Section 10(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 10(c) hereof. Notwithstanding the foregoing provisions of this Section 10(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 10(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 10(e), will notify in writing 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 10(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 10(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 10(c)
hereof.
11.
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 10 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 or controlling persons), (ii) delivery and acceptance of the Placement Shares and payment
therefor or (iii) any termination of this Agreement.
12.
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 pandemic 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 authorities. Any such termination shall be without liability of any party
to any other party except that the provisions of Section 8 (Payment of Expenses), Section 10 (Indemnification and Contribution), Section
11 (Representations and Agreements to Survive Delivery), Section 17 (Governing Law and Time; Waiver of Jury Trial) and Section 18 (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 12(a), the Agent shall provide the required notice as specified in Section 13 (Notices).
(b)
The Company shall have the right, by giving three (3) 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 8, Section 10, Section 11, Section 17 and Section 18 hereof shall remain in full force and effect notwithstanding
such termination.
(c)
The Agent shall have the right, by giving three (3) days written 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 8, Section 10, Section 11, Section 17 and Section 18 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 12(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 8, Section 10, Section 11, Section 17 and Section 18 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; provided, further, any termination of this Agreement in accordance with the terms of Section 12(b) or (c) shall not
be effective until the date that is three days after the date of such written notice. 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.
13.
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:
JonesTrading
Institutional Services LLC
900
Island Park Drive, Suite 200
Daniel
Island, SC 29492
Attn:
Burke Cook
Email:
burke@jonestrading.com
With
a copy to
Ellenoff
Grossman & Schole LLP
1345
Avenue of the Americas, 11th Floor
New
York, NY 10105
Attention:
Matthew Bernstein, Esq.
Email:
mbernstein@egsllp.com
Telephone:
(212) 370-1300
and
if to the Company, shall be delivered to:
Galmed
Pharmaceuticals Ltd.
16
Abba Hillel Silver Rd.
Ramat
Gan 52506, Israel
Attn:
Allen Baharaff
Email:
ab@galmedpharma.com
with
a copy to:
Greenberg
Traurig, P.A.
One
Azrieli Center
Round
Tower
132
Menachem Begin Rd
Tel
Aviv 6701101
Tel:
+1 212 801 9337
Attn:
Gary Emmanuel
Email:
gary.emmanuel@gtlaw.com
and
Meitar
| Law Offices
16
Abba Hillel Silver Rd.
Ramat
Gan 52506, Israel
Tel:
+972-3-610-3100
Attn:
Mike Rimon
Email:
mrimon@meitar.com
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 or by verifiable facsimile
transmission (with an original to follow) 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 13 if sent
to the electronic mail address specified by the receiving party under this Section 13. 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.
14.
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and the parties
referred to in Section 10 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; provided, however, that the Agent may assign its rights and obligations hereunder
to an affiliate thereof without obtaining the Company’s consent.
15.
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.
16.
Entire Agreement; Amendment; Severability. 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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
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 facsimile, 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 24 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.
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.
“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
172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),”
“Rule 430B,” and “Rule 433” refer to such rules under the Securities Act.
“Trading
Day” means any day on which Ordinary Shares are purchased and sold on the Exchange.
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.
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, |
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|
|
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Galmed
Pharmaceuticals Ltd. |
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|
|
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By: |
|
| |
Name: |
Allen
Baharaff |
| |
Title: |
Chief
Executive Officer |
| |
|
|
| |
ACCEPTED
as of the date first-above written: |
| |
|
|
| |
JONESTRADING
INSTITUTIONAL SERVICES LLC |
| |
|
|
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By: |
|
| |
Name: |
|
| |
Title: |
|
SCHEDULE
1
FORM
OF PLACEMENT NOTICE
| |
From: |
GALMED
PHARMACEUTICALS LTD. |
| |
|
|
| |
To: |
JONESTRADING
INSTITUTIONAL SERVICES LLC |
| |
|
Attention:
_____________________ |
| |
|
|
| |
Subject: |
Placement
Notice |
| |
|
|
| |
Date: |
[●] |
Ladies
and Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the Capital on Demand™ Sales Agreement between GALMED PHARMACEUTICALS
LTD. (the “Company”) and JONESTRADING INSTITUTIONAL SERVICES LLC (“Agent”), dated [●], 2024,
the Company hereby requests that the Agent sell up to ____________ of the Company’s Ordinary Shares, par value NIS 1.80 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
Compensation
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
Notice
Parties
The
Company
Allen
Baharaff
Doron
Cohen
Yohai
Stenzler
Guy
Nehemya
The
Agent
Moe
Cohen
Bryan
Turley
James
O’Neill
Jack
Terranova
Burke
Cook
Ryan
Loforte
with
a copy to JTCM@jonestrading.com
EXHIBIT
7(l)
Form
of Representation Date Certificate
____________________,
20__
The
undersigned, the duly qualified and elected __________ of Galmed Pharmaceuticals 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
7(l) of the Sales Agreement, dated _____, 2024, by and between JonesTrading Institutional Services LLC , 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 6 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 Company U.S. Counsel, Company Israeli Counsel, and Ellenoff Grossman & Schole LLP, 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.
| |
Galmed
Pharmaceuticals Ltd. |
| |
|
| |
By: |
|
| |
Name:
|
|
| |
Title: |
|
Galmed Pharmaceuticals (NASDAQ:GLMD)
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