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 January 2024 (Report
No. 3)
Commission file number: 001-40753
ICECURE
MEDICAL LTD.
(Translation of registrant’s name into
English)
7 Ha’Eshel St., PO Box 3163
Caesarea, 3079504 Israel
(Address of principal executive office)
Indicate by check mark whether the registrant
files or will file annual reports under cover of Form 20-F or Form 40-F:
☒
Form 20-F ☐
Form 40-F
CONTENTS
Execution of Equity
Distribution Agreement
On January 12, 2024, IceCure
Medical Ltd., or the Company, entered into an Equity Distribution Agreement, or the Agreement, with Maxim Group LLC, or the Sales Agent,
pursuant to which the Company may offer and sell, from time to time, to or through the Sales Agent as agent, ordinary shares, no par value
per share, or the Ordinary Shares. The Ordinary Shares will be offered and sold pursuant to the Company’s currently effective registration
statement on Form F-3 (File No. 333-267272), the prospectus contained therein and the prospectus supplement filed with the Securities
and Exchange Commission dated January 12, 2024.
The Company is not obligated
to sell any Ordinary Shares under the Agreement. Subject to the terms and conditions of the 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 Capital Market to sell Ordinary Shares from time to time based upon the Company’s instructions, including
any price, time or size limits specified by the Company. Upon delivery of a transaction notice to the Sales Agent, and subject to the
Company’s instructions in that notice, and the terms and conditions of the Agreement, the Sales Agent may sell the Ordinary Shares
by any method permitted by law deemed to be an “at the market offering” as defined by Rule 415(a)(4) promulgated under the
Securities Act of 1933, as amended. The Sales Agent’s obligations to sell Ordinary Shares under the Agreement is subject to satisfaction
of certain conditions. The Company will pay the Sales Agent a commission equal to 2.5% of the gross sales price per share sold pursuant
to the terms of the 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.
The foregoing summary of the
Agreement does not purport to be complete and is qualified in its entirety by reference to the Agreement, which is attached as Exhibit
10.1 to this Report of Foreign Private Issuer on Form 6-K, or this Report, and is incorporated herein by reference.
The
legal opinion of Sullivan & Worcester Tel Aviv (Har-Even & Co.) relating to the Ordinary Shares that may be sold pursuant to the
Agreement is filed as Exhibit 5.1 to this Report.
This Report shall not constitute
an offer to sell or the solicitation of an offer to buy nor shall there be any sale of the Ordinary Shares in any state or jurisdiction
in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
state or jurisdiction.
This Report is incorporated
by reference into the Company’s Registration Statements on Form F-3 (Registration Nos. 333-258660 and 333-267272) and Form S-8
(Registration Nos. 333-270982, 333-264578, and 333-262620), filed with the Securities and Exchange Commission, to be a part thereof from
the date on which this Report is submitted, to the extent not superseded by documents or reports subsequently filed or furnished.
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
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IceCure Medical Ltd. |
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Date: January 12, 2024 |
By: |
/s/ Eyal Shamir |
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Name: |
Eyal Shamir |
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Title: |
Chief Executive Officer |
2
Exhibit
5.1
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Sullivan
& Worcester Tel Aviv
28
HaArba’a St. HaArba’a Towers North Tower, 35th Floor
Tel-Aviv, Israel |
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+972-747580480
sullivanlaw.com |
January
12, 2024
To: |
IceCure Medical Ltd. |
7 Ha’Eshel St., PO Box
3163, |
Caesarea, 3079504 Israel |
Re:
Registration Statement on Form F-3
Ladies
and Gentlemen:
We
have acted as Israeli counsel to IceCure Medical Ltd., a company organized under the laws of the State of Israel (the “Company”),
in connection with its registration statement on Form F-3 (the “Registration Statement”), the prospectus included
therein and the related prospectus supplement (such prospectus, as supplemented by such prospectus supplement, the “Prospectus
Supplement”) filed or to be filed with the Securities and Exchange Commission (the “SEC”) under the Securities
Act of 1933, as amended (the “Securities Act”) with respect to the sale of ordinary shares of the Company, no par
value (the “Ordinary Shares”) having an aggregate offering price of up to $9,700,000 (the Ordinary Shares subject
to Equity Distribution Agreement being referred to herein as the “Shares”) from time to time pursuant to an equity
distribution agreement, dated as of January 12, 2024 (the “Equity Distribution Agreement”), entered into by and between
the Company and Maxim Group LLC.
We
have also acted as Israeli counsel to the Company in connection with the Equity Distribution Agreement.
In
connection herewith, we have examined the originals, or photocopies or copies, certified or otherwise identified to our satisfaction,
of: (i) the Registration Statement; (ii) the Prospectus Supplement; (iii) the articles of association of the Company, as currently in
effect (the “Articles”); (iv) minutes of meetings of the board of directors of the Company (the “Board”)
at which the filing of the Registration Statement and the actions to be taken in connection therewith, as well as the execution of the
Equity Distribution Agreement and the actions to be taken in connection therewith, were approved; and (v) such other corporate records,
agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives
of the Company as we have deemed relevant and necessary as a basis for the opinions hereafter set forth. We have also made inquiries
of such officers and representatives as we have deemed relevant and necessary as a basis for the opinions hereafter set forth.
In
such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, confirmed
as photostatic copies and the authenticity of the originals of such latter documents. We have also assumed the truth of all facts communicated
to us by the Company and that all minutes of meetings of the Board and the shareholders of the Company that have been provided to us
are true and accurate and have been properly prepared in accordance with the Articles and all applicable laws.
Based
upon and subject to the foregoing, we are of the opinion that with respect to the Shares, assuming that prior to the issuance of any
of the Shares under the Equity Distribution Agreement, the price, number of Shares and certain other terms of issuance with respect to
any specific transaction notice delivered under the Equity Distribution Agreement will be authorized and approved by the Board or a pricing
committee of the Board in compliance with applicable Israeli law (for purposes of this paragraph, the “Authorizing Resolutions”),
all corporate proceedings necessary for the authorization, issuance and delivery of the Shares shall have been taken and, upon issuance
pursuant to the terms of the Equity Distribution Agreement and in accordance with resolutions of the Board related to the offering of
the Shares, the Shares will be validly issued, fully paid and non-assessable.
With
respect to our opinion as to the Shares, we have assumed that, at the time of issuance and sale and to the extent any such issuance would
exceed the maximum share capital of the Company currently authorized, the number of Ordinary Shares that the Company is authorized to
issue shall have been increased in accordance with the Company’s Articles such that a sufficient number of Ordinary Shares are
authorized and available for issuance under the Articles.
Members
of our firm are admitted to the Bar in the State of Israel, and we do not express any opinion as to the laws of any other jurisdiction.
This opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated.
We
consent to the filing of this opinion as an exhibit on a Form 6-K of the Company being filed on the date hereof and to the reference
to our firm appearing under the caption “Legal Matters” and, if applicable, “Enforcement of Civil Liabilities”
in the prospectus forming part of the Registration Statement. In giving this consent, we do not thereby admit that we are within the
category of persons whose consent is required under Section 7 of the Securities Act, the rules and regulations of the SEC promulgated
thereunder or Item 509 of the SEC’s Regulation S-K under the Securities Act.
This
opinion letter is rendered as of the date hereof and we disclaim any obligation to advise you of facts, circumstances, events or developments
that may be brought to our attention after the effective date of this opinion that may alter, affect or modify the opinions expressed
herein.
Very
truly yours,
/s/ Sullivan & Worcester Tel-Aviv (Har-Even & Co.) |
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Sullivan& Worcester Tel-Aviv (Har-Even & Co.) |
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Exhibit 10.1
ICECURE MEDICAL LTD.
Up to US$9,700,000 of Ordinary Shares
EQUITY DISTRIBUTION AGREEMENT
January 12, 2024
Maxim Group LLC
300 Park Avenue
New York, New York 10022
Ladies and Gentlemen:
This Equity Distribution Agreement
(this “Agreement”) is entered into between IceCure Medical Ltd., a company formed under the laws of the State
of Israel (the “Company”) and Maxim Group LLC (the “Agent”), as sales agent, with
respect to the proposed issue and sale by the Company, through the Agent, of ordinary shares of the Company, no par value per share (the
“Ordinary Shares”), having an aggregate offering price of up to US$9,700,000 (the Ordinary Shares subject to
this Agreement being referred to herein as the “Shares”) on terms set forth herein. The Shares consist entirely
of authorized but unissued Ordinary Shares to be issued and sold by the Company.
The Company hereby confirms
its agreement with the Agent with respect to the sale of the Shares.
1. Representations
and Warranties of the Company.
(a)
The Company represents and warrants to, and agrees with, the Agent as follows:
(i) A registration
statement on Form F-3 (File No. 333-267272) (the “registration statement”) was filed with the Securities
and Exchange Commission (the “Commission”) on September 2, 2022, under the Securities Act of 1933, as
amended (the “Securities Act of 1933”), and the rules and regulations promulgated thereunder (the
“Rules and Regulations” and collectively with the Securities Act of 1933, the “Securities
Act”), and was declared effective by the Commission on September 14, 2022; since the date of effectiveness of the
registration statement, no additional or supplemental information was requested by the Commission; no stop order of the
Commission preventing or suspending the use of the Prospectus (as defined below) or any Permitted Free Writing Prospectus (as
defined below), or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been
instituted or, to the Company’s knowledge, are contemplated by the Commission with respect to the Registration Statement (as
defined below). Except where the context otherwise requires, “Registration Statement,” as used herein,
means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes of
Section 11 of the Securities Act, as such Section applies to the Agent, including (1) all documents filed as a part thereof or
incorporated or deemed to be incorporated by reference therein, (2) any information contained or incorporated by reference in a
prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act, to the extent such information is deemed,
pursuant to Rule 430B or Rule 430C under the Securities Act, to be part of the registration statement at such time, and (3) any
registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Securities Act (the
“462(b) Registration Statement”). Except where the context otherwise requires, (1) “Base
Prospectus,” as used herein, means the prospectus filed as part of the Registration Statement, together with any
amendments or supplements thereto as of the date of this Agreement, and (2) “Prospectus Supplement,” as
used herein, means the most recent prospectus supplement relating to the Shares filed by the Company with the Commission pursuant to
Rule 424(b) under the Securities Act in accordance with the terms of this Agreement, and (3) “Prospectus,”
as used herein, means the Prospectus Supplement together with the Base Prospectus, as may be amended or supplemented from time to
time. “Permitted Free Writing Prospectus,” as used herein, means the documents, if any, listed on Schedule
A attached hereto and, after the date hereof, any “issuer free writing prospectus” as defined in Rule 433 of the
Securities Act, that is expressly agreed to by the Company and the Agent in writing to be a Permitted Free Writing Prospectus. Any
reference herein to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to
and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein pursuant to Item 6
of Form F-3 (the “Incorporated Documents”), including, unless the context otherwise requires, the
documents, if any, filed as exhibits to such Incorporated Documents. For purposes of this Agreement, all references to the
Registration Statement, the Rule 462(b) 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 its Electronic Data Gathering, Analysis and
Retrieval (EDGAR) System. All references in this Agreement to financial statements and schedules and other information which is
“described,” “contained,” “included” or “stated” in the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus (or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is incorporated by reference in or otherwise deemed by the Rules
and Regulations to be a part of or included in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus
as the case may be. Any reference herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement, the Prospectus or any Permitted Free Writing
Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder (collectively, the “Exchange Act”) on or after the initial
effective date of the Registration Statement, or the date of the Prospectus or such Permitted Free Writing Prospectus, if any, as
the case may be, and incorporated or deemed to be incorporated therein by reference pursuant to Item 6 of Form F-3.
“Time of Sale” means each time a Share is purchased pursuant to this Agreement.
(ii)
(A) The Registration Statement complied when it became effective, complies as of the date hereof, and will comply upon the effectiveness
of any amendment thereto and at each Time of Sale and each Settlement Date (as applicable), in all material respects, with the requirements
of the Securities Act; at all times during which a prospectus is required by the Securities Act to be delivered (whether physically
or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with any sale of Shares (the “Prospectus
Delivery Period”), the Registration Statement, as may be amended, will comply, in all material respects, with the requirements
of the Securities Act; the conditions to the use of Form F-3 in connection with the offering and sale of the Shares as contemplated
hereby (the “Offering”) have been satisfied; the Registration Statement meets, and the Offering complies
with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Registration Statement
did not, as of the time of its effectiveness and as of the date hereof, and will not, as of the effective date of any amendment thereto,
at each Time of Sale, if any, and at all times during a Prospectus Delivery Period, 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.
(B)
The Prospectus, as of the date hereof (if filed with the Commission on or prior to the date hereof), at each Settlement Date and
Time of Sale (as applicable), and at all times during a Prospectus Delivery Period, complied, complies or will comply, in all material
respects, with the requirements of the Securities Act; and the Prospectus, and each supplement thereto, as of their respective dates,
at each Settlement Date or Time of Sale (as applicable), and at all times during a Prospectus Delivery Period, did not and will not include
an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(C)
Each Permitted Free Writing Prospectus, if any, as of its date and as of each Settlement Date and Time of Sale (as applicable),
and at all times during a Prospectus Delivery Period (when taken together with the Prospectus at each such time) will not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The representations and warranties set forth in
subparagraphs (A), (B) and (C) above shall not apply to any statement contained in the Registration Statement, the Prospectus or any Permitted
Free Writing Prospectus in reliance upon and in conformity with information concerning the Agent that is furnished in writing by or on
behalf of the Agent expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus, if any,
it being understood and agreed that the only such information furnished by the Agent as of the date hereof consists of the information
described in Section 6(b).
(iii) Prior
to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Shares by means of any
“prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the
Securities Act) in connection with the Offering, in each case other than the Base Prospectus or any Permitted Free Writing
Prospectus; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus
except in compliance with Rules 164 and 433 under the Securities Act; assuming that a Permitted Free Writing Prospectus, if
any, is sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing
Prospectus, if any, was, if required pursuant to Rule 433(d) under the Securities Act, filed with the Commission), the Company will
satisfy the provisions of Rule 164 or Rule 433 necessary for the use of a free writing prospectus (as defined in Rule 405 under the
Securities Act) in connection with the Offering; the conditions set forth in one or more of subclauses (i) through (iv),
inclusive, of Rule 433(b)(1) under the Securities Act are satisfied, and the registration statement relating to the Offering, as
initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Securities
Act, satisfies the requirements of Section 10 of the Securities Act; neither the Company nor the Agent is disqualified, by
reason of subsection (f) or (g) of Rule 164 under the Securities Act, from using, in connection with the Offering, “free
writing prospectuses” (as defined in Rule 405 under the Securities Act) pursuant to Rules 164 and 433 under the Securities
Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the
eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Shares
contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all “road
shows” (as defined in Rule 433 under the Securities Act) related to the Offering is solely the property of the Company.
(iv)
Each Permitted Free Writing Prospectus, as of its issue date, did not conflict with the information contained in the Registration
Statement or the Prospectus. The foregoing sentence does not apply to statements in or omissions from any Permitted Free Writing Prospectus
based upon and in conformity with written information furnished to the Company by the Agent specifically for use therein, it being understood
and agreed that the only such information furnished by the Agent as of the date hereof consists of the information described in Section
6(b).
(v)
The consolidated financial statements of the Company and the Subsidiaries (as defined below), together with the related notes,
set forth or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the requirements
of the Securities Act and the Exchange Act and fairly present in all material respects the financial condition of the Company and the
Subsidiaries, on a consolidated basis, as of the dates indicated and the results of operations and changes in cash flows for the periods
therein specified in conformity with U.S. generally accepted accounting principles (“GAAP”) consistently applied
throughout the periods involved. No other financial statements or supporting schedules are required to be included or incorporated by
reference in the Registration Statement or the Prospectus under the Securities Act except as so included or incorporated by reference.
To the Company’s knowledge, and based solely upon representations made to the Company by Brightman Almagor Zohar & Co., a firm
in the Deloitte Global Network (“Deloitte”), which has expressed its opinion with respect to the financial statements
and schedules, if any, filed as a part of the Registration Statement and included in the Registration Statement and the Prospectus, is
a registered public accounting firm within the meaning of the Securities Act, and in the performance of its work for the Company has not
been in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”).
(vi)
The Company has no material subsidiaries other than those listed in Exhibit 8.1 to its annual report on Form 20-F for the year
ended December 31, 2022 (collectively, the “Subsidiaries”). Except as disclosed in the Registration Statement
or the Prospectus, the Company does not own, directly or indirectly, any shares of stock or any other equity or long-term debt securities
of any other corporation or have any equity interest in any other corporation, partnership, joint venture, association, trust or other
entity.
(vii) Each
of the Company and the Subsidiaries has been duly organized and is validly existing as a corporation under the laws of its
jurisdiction of incorporation. The Company and each of the Subsidiaries has full corporate power and authority to own its respective
properties and conduct its business as currently being carried on and as described in the Registration Statement and the Prospectus,
and is duly qualified to do business as a foreign corporation in good standing in each jurisdiction in which it owns or leases real
property or in which the conduct of its business makes such qualification necessary and in which the failure to so qualify would
reasonably be expected to have a material adverse effect upon the results of operations, business, management, properties,
prospects, conditions (financial or otherwise) or operations, of the Company and the Subsidiaries, either individually or taken as a
whole (“Material Adverse Effect”). The Company is not designated as a “breaching
company” (within the meaning of the Israeli Companies Law, 5759-1999 and the rules and regulations promulgated thereunder,
the “Companies Law”) by the Registrar of Companies of the State of Israel (the “Israeli
Registrar”) nor has a proceeding been instituted by the Israeli Registrar for the dissolution of the Company. The
articles of association and other organizational documents of the Company comply with the requirements of applicable law of their
respective jurisdictions of incorporation and are in full force and effect.
(viii)
Except as disclosed in the Prospectus, subsequent to the dates as of which information is given in the Prospectus, the Company
(including the Subsidiaries on a consolidated basis) has not incurred any material liabilities or obligations, direct or contingent, or
entered into any material transactions, or declared or paid any material dividends or made any material distribution of any kind with
respect to the capital stock of the Company; and there has not been any material change in the capital stock of the Company, or material
issuance of options, warrants, convertible securities or other rights to purchase the capital stock of the Company, or any material change
in the short-term or long-term debt of the Company (other than as a result of the exercise of any currently outstanding options or warrants
that are disclosed in the Prospectus), or any Material Adverse Effect or any development that would reasonably be expected to result in
a Material Adverse Effect. Since the date of the latest balance sheet presented in the Registration Statement and the Prospectus, neither
the Company nor any Subsidiary has entered into any transactions, including any acquisition or disposition of any business or asset, which
are material to the Company and the Subsidiaries taken as a whole, except for transactions which are disclosed in the Registration Statement
or the Prospectus.
(ix)
Except as set forth in the Prospectus, there is not pending or, to the knowledge of the Company, threatened or contemplated, any
action, suit or proceeding to which the Company or any of its Subsidiaries or of which any property or assets of the Company or any of
its Subsidiaries is the subject before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which,
if determined adversely to the Company or such Subsidiary, individually or in the aggregate, would reasonably be expected to result in
any Material Adverse Effect.
(x)
There are no statutes, regulations, contracts or documents that are required to be described in the Registration Statement and
the Prospectus or be filed as exhibits to the Registration Statement by the Securities Act that have not been so described or filed.
(xi)
This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation
of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity hereunder may be limited by
federal or state securities laws and except as such enforceability (including, for the avoidance of doubt, rights to indemnity) may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles
of equity. The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will
not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (A) any law, rule or regulation
to which the Company or any of its Subsidiaries is subject, (B) any agreement or instrument to which the Company or any of its Subsidiaries
is bound or to which any of its property is subject, (C) the Company’s Articles of Association, as amended, or the organizational
documents of any of its Subsidiaries, or (D) any order, rule, regulation or decree of any court or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of its properties, except, in the case of clauses (A), (B), and (D), for
such breaches, violations or defaults that would not reasonably be expected to result in a Material Adverse Effect.
(xii) All of the issued
and outstanding shares of capital stock of the Company, including the outstanding Ordinary Shares, are duly authorized and validly
issued, fully paid and nonassessable, have been issued in compliance with all applicable foreign, federal and state securities laws,
including the Companies Law and the Israeli Securities Law 5728-1968 (the “Israeli Securities Law”), were
not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not
been waived in writing, and the holders thereof are not subject to personal liability by reason of being such holders; all of the
issued and outstanding shares of capital stock of each of the Subsidiaries are duly authorized and validly issued, fully paid and
nonassessable, and are owned by the Company, directly or through wholly-owned Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, have been issued in compliance with all applicable foreign, federal and state
securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase
securities that have not been waived in writing, and the holders thereof are not subject to personal liability by reason of being
such holders; the Shares which may be sold under this Agreement by the Company have been duly authorized and, when issued, delivered
and paid for in accordance with the terms of this Agreement will have been validly issued and will be fully paid and nonassessable,
and the holders thereof will not be subject to personal liability solely by reason of being such holders; and the capital stock of
the Company, including the Ordinary Shares, conforms in all material respects to the description thereof in the Registration
Statement and the Prospectus. Except as otherwise stated in the Registration Statement and the Prospectus, there are no preemptive
rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any Ordinary Shares
pursuant to the Company’s Articles of Association, or any agreement or other instrument to which the Company is a party or by
which the Company is bound. Neither the filing of the Registration Statement nor the Offering gives rise to any rights by any
parties relating to the registration of any Ordinary Shares or other securities of the Company, except for such registration rights
as have been duly waived. Except as described in the Registration Statement and the Prospectus, there are no options, warrants,
agreements, contracts or other rights in existence to purchase or acquire from the Company any shares of the capital stock of the
Company. The Company has the authorized and outstanding capital stock as set forth in the Prospectus as of the date set forth
therein.
(xiii)
The Company and each of its Subsidiaries hold, and are operating in compliance with all grants, authorizations, licenses, permits,
consents, certificates and orders of any governmental or self-regulatory body required for the conduct of their respective businesses,
and all such grants, authorizations, licenses, permits, consents, certifications and orders are valid and in full force and effect, except
for such noncompliance, failures to hold or failures to be in full force and effect that would not reasonably be expected to result in
a Material Adverse Effect; and neither the Company nor any of its Subsidiaries has received notice of any revocation or modification
of any such grant, authorization, license, permit, consent, certification or order or has reason to believe that any such grant, authorization,
license, permit, consent, certification or order will not be renewed in the ordinary course, except for such notices and such possibility
of non-renewal that would not reasonably be expected to result in a Material Adverse Effect; and the Company and each of its Subsidiaries
is in compliance with all applicable federal, state, local and foreign laws, regulations, orders and decrees, except for such noncompliance
that would not reasonably be expected to result in a Material Adverse Effect. No approval, authorization, consent or order of or filing
with any foreign, federal, state or local governmental or regulatory commission, board, body, authority or agency is required in connection
with the issuance and sale of the Shares or the consummation by the Company of the transactions contemplated hereby, other than (A) as
have been obtained or may be required under the Securities Act, (B) as have been obtained or may be required under the blue sky laws of
the various jurisdictions in which the Shares are being offered by the Agent, (C) the filing of any reports under the Exchange Act, (D)
such approvals as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”), (E) approval
of the listing of the Shares by the NASDAQ Capital Market or (F) such approvals as have been obtained or made as of the Time of Sale.
(xiv)
The Company and each of its Subsidiaries have good and marketable title to all property (whether real or personal) described in
the Registration Statement and the Prospectus as being owned by them, in each case free and clear of all liens, claims, security interests,
other encumbrances or defects except such as are described in the Registration Statement and the Prospectus, or as would not reasonably
be expected to result in a Material Adverse Effect. The property held under lease by the Company and each of its Subsidiaries is held
by it under valid, subsisting and enforceable leases with only such exceptions as would not reasonably be expected to result in a Material
Adverse Effect.
(xv) The Company and
each of its Subsidiaries own, possess, or can acquire on reasonable terms, all material Intellectual Property (as defined below)
necessary for the conduct of their respective businesses as now conducted or as described in or incorporated by reference into the
Registration Statement and the Prospectus to be conducted. Except as would not reasonably be expected to result in a Material
Adverse Effect, (A) there are no rights of third parties to any such Intellectual Property owned by the Company, except as otherwise
disclosed to the Agent in writing by the Company prior to the date hereof; (B) to the knowledge of the Company, there is no
infringement, misappropriation or violation by third parties of any such Intellectual Property; (C) there is no pending or, to
the knowledge of the Company, threatened, action, suit, proceeding or claim by others challenging the Company’s or any
Subsidiary’s rights in or to any such Intellectual Property, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (D) to the knowledge of the Company, the Intellectual Property owned by or licensed to the
Company and each of the Subsidiaries, has not been adjudged invalid or unenforceable, in whole or in part, and there is no pending
or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging the validity or scope of any
such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (E)
there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others that the Company or
any of its Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property or other proprietary rights of
others, and neither the Company nor any of the Subsidiaries has received any written notice of such claim; and (F) to the
Company’s knowledge, no employee of the Company or any of its Subsidiaries is in or has ever been in violation of any term of
any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation
agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis of such violation
relates to such employee’s employment with the Company or any of its Subsidiaries or actions undertaken by the employee while
employed with the Company or any of its Subsidiaries. “Intellectual Property” shall mean all patents,
patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions,
trade secrets, domain names, technology, know-how and other intellectual property.
(xvi)
Neither the Company nor any of its Subsidiaries is (A) in violation of its certificate of incorporation, articles of association
or similar organizational documents, or (B) in breach of or otherwise in default, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default in the performance of any material obligation, agreement or condition contained in any
bond, debenture, note, indenture, loan agreement, security agreement, mortgage, deed of trust or any other material contract, lease or
other instrument to which it is subject or by which any of them may be bound, or to which any of the material property or assets of the
Company or any of its Subsidiaries is subject; or (C) 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 (B) and (C) above, as would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(xvii)
The Company and each of the Subsidiaries have timely filed all applicable federal, state, local, foreign and other income and franchise
tax returns required to be filed and are not in default in the payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto, other than any which the Company or any of its Subsidiaries is contesting in good faith, except where
the failure to timely file or any default payment could not reasonably be expected to result in a Material Adverse Effect. There is no
pending dispute with any taxing authority relating to any of such returns, and the Company has no knowledge of any proposed liability
for any tax to be imposed upon the properties or assets of the Company or any of its Subsidiaries for which there is not an adequate reserve
reflected in the Company’s financial statements included in the Registration Statement. There are no documentary, stamp or other
issuance or transfer taxes or duties or similar fees or charges under U.S. federal law or the laws of any U.S. state, the State of Israel,
or any political subdivision of any thereof, required to be paid in connection with the execution and delivery of this Agreement or the
issuance, sale and delivery by the Company of the Shares.
(xviii)
The Company has not distributed and will not distribute any prospectus or other offering material in connection with the Offering
other than the Registration Statement and the Prospectus or other materials permitted by the Securities Act to be distributed by the Company;
provided, however, that the Company has not made and will not make any offer relating to the Shares that would constitute a “free
writing prospectus” as defined in Rule 405 under the Securities Act, except in accordance with the provisions of Section
4(o) of this Agreement.
(xix)
The issuance and sale of the Shares as contemplated in this Agreement does not contravene the rules and regulations of the NASDAQ
Capital Market. The Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed on the NASDAQ Capital
Market, and 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 or delisting the Ordinary Shares from the NASDAQ Capital Market nor, except as disclosed in the Registration
Statement or the Prospectus, has the Company received any notification that the Commission or the NASDAQ Capital Market is contemplating
terminating such registration or listing. Except as disclosed in the Registration Statement or the Prospectus, the Company is in compliance
in all material respects with the applicable requirements of the NASDAQ Capital Market for maintaining the listing of the Ordinary Shares
thereon. The Company has filed a notice to include the Shares on the NASDAQ Capital Market.
(xx) The Company and
each of its Subsidiaries have established and maintain systems of internal accounting controls that comply in all material respects
with applicable regulatory requirements, including the Exchange Act, and are sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management’s general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and
to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or
specific authorization; and (D) amounts reflected on the Company’s consolidated balance sheet for assets are compared
with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in
the Registration Statement or the Prospectus, since the filing of the annual report on Form 20-F for the fiscal year ended December
31, 2022, there has been (i) no new material weakness identified to the Company’s board of directors (or committee thereof) in
the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting.
(xxi)
Each of the Company and the Subsidiaries: (A) is and at all times has been in material compliance with all United States (federal,
state and local) and foreign statutes, rules, regulations, treaties, or guidance applicable to the Company or the Subsidiaries (“Applicable
Laws”); (B) except as set forth in Schedule 1(a)(xxi)(B), has not received any notice of adverse finding, warning
letter, untitled letter or other correspondence or notice from any Governmental Authority (as defined below) 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) 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 intends to assert any such claim, litigation, arbitration, action, suit, investigation or proceeding; (D) 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 the Company has no knowledge that any such Governmental Authority is considering such action; and (E) 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 in all material respects on the date filed (or were
corrected or supplemented by a subsequent submission). “Governmental Authority” means any federal, provincial,
state, local, foreign or other governmental or quasi-governmental agency or body or any other type of regulatory authority or body, including,
without limitation, the Commission and the NASDAQ Capital Market. The aggregate of all pending legal or governmental proceedings to which
the Company or any Subsidiary is a party or of which any of their respective property or assets is the subject which are not described
in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the business, would not result in
a Material Adverse Effect.
(xxii) As to each
product or product candidate subject to the jurisdiction of the U.S. Food and Drug Administration (the
“FDA”) under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder
(“FDCA”) and/or the jurisdiction of the non-U.S. counterparts thereof that is currently being tested by
the Company (or any of its Subsidiaries) (each such product, a “Product”), such Product is being tested by
the Company in compliance with all applicable requirements under FDCA and/or and similar laws, rules and regulations relating to
registration, investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good
laboratory practices, good clinical practices, product listing, quotas, advertising, record keeping and filing of reports, except
where the failure to be in compliance would not have a Material Adverse Effect. Except as disclosed in the Registration Statement
and the Prospectus, the Company currently has no products that have been approved by the FDA or any non-U.S. counterparts thereof to
be manufactured, packaged, labeled, distributed, sold and/or marketed. There is no pending, completed or, to the Company’s
knowledge, threatened, action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge,
complaint, or investigation) against the Company and the Company has not received any written notice, warning letter or other
communication from the FDA or any other governmental entity or any non-U.S. counterparts thereof, in either case which (A) contests
the premarket clearance, licensure, registration or approval of, the uses of, the distribution of, the manufacturing or packaging
of, the testing of, the sale of, or the labeling and promotion of any Product, (B) imposes a clinical hold on any clinical
investigation by the Company, (C) enters or proposes to enter into a consent decree of permanent injunction with the Company, or (D)
otherwise alleges any violation of any laws, rules or regulations by the Company, and which, either individually or in the
aggregate, would have a Material Adverse Effect. The properties, business and operations of the Company have been and are being
conducted in all material respects in accordance with all applicable laws, rules and regulations of the FDA and non-U.S.
counterparts thereof. The Company has not been informed by the FDA or any non-U.S. counterparts thereof that such agency will
prohibit the marketing, sale, license or use of any Product nor has the FDA or a non-U.S. counterpart thereof provided any written
notice that could reasonably be expected to preclude the approval or the clearing for marketing of any Product.
(xxiii)
The clinical, pre-clinical and other studies and tests (“Studies”) conducted by or on behalf of or sponsored
by the Company (including its Subsidiaries) that are described or referred to in the Registration Statement and the Prospectus were and,
if still pending, are, being conducted in accordance with all applicable statutes, laws, rules and regulations (including, without limitation,
those administered by the FDA or by any foreign, federal, state or local governmental or regulatory authority performing functions similar
to those performed by the FDA), as well as the protocols, procedures and controls designed and approved for such Studies and with standard
medical and scientific research procedures. The descriptions of the results of such Studies that are described or referred to in the Registration
Statement and the Prospectus are accurate and complete in all material respects and fairly present the data derived from such Studies.
Except as disclosed in the Registration Statement and the Prospectus, the Company has not received any written notices or other correspondence
from the FDA or any other foreign, federal, state or local governmental or regulatory authority performing functions similar to those
performed by the FDA requiring the termination or suspension of such Studies, other than ordinary course communications with respect to
modifications in connection with the design and implementation of such Studies.
(xxiv)
Other than as contemplated by this Agreement, the Company has not incurred any liability for any finder’s or broker’s
fee or agent’s commission in connection with the execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby. The Company has not entered into any other sales agency agreements or other similar arrangements with any agent or
any other representative in respect of “at the market” offerings of the Shares in accordance with Rule 415 under the
Securities Act that remains in effect as of the date of this Agreement.
(xxv)
Except as disclosed in the Registration Statement or the Prospectus, (A) the Company and each of the Subsidiaries carries, or is
covered by, insurance in such amounts and covering such risks the Company reasonably believes are adequate for the conduct of its respective
business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries; (B)
all policies of insurance and any fidelity or surety bonds insuring the Company, each of its Subsidiaries and their respective businesses,
assets, employees, officers and directors are in full force and effect, except as would not reasonably be expected to result in a Material
Adverse Effect; (C) the Company and each of its Subsidiaries is in compliance with the terms of such policies and instruments in
all material respects; (D) there are no material claims by the Company or any of the Subsidiaries under any such policy or instrument
as to which any insurance company is denying liability or defending under a reservation of rights clause; (E) neither the Company
nor any of the Subsidiaries has been refused any insurance coverage sought or applied for; and (F) the Company has no reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.
(xxvi) The Company is not, and immediately after receipt of payment for the Shares, will not be required to register as an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
(xxvii) Except as
described in the Registration Statement, the Prospectus or documents incorporated thereto, the Company has established and maintains
disclosure controls and procedures (within the meaning of Rule 13a-15(e) of the Exchange Act) designed to ensure that information
required to be disclosed in the reports that the Company files or submits under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified in the rules and forms of the Commission and that such information is accumulated and
communicated to the Company’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate,
to allow timely decisions regarding required disclosure and has utilized such controls and procedures in preparing and evaluating
the disclosures in the Registration Statement and the Prospectus.
(xxviii) To
the knowledge of the Company, neither the Company, the Subsidiaries, nor any director, officer, agent, employee or affiliate of the
Company or any Subsidiary, has taken any action directly or indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to
give, or authorization of the giving of anything of value to any “Foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the
FCPA, and the Company and each of its Subsidiaries has conducted its business in compliance with the FCPA and has instituted and
maintains policies and procedures designed to ensure, and which are reasonably expected to ensure, continued compliance
therewith.
(xxix)
The Company and each of the Subsidiaries have complied in all material respects with the money laundering statutes of applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by applicable governmental agencies (collectively, the “Money Laundering Laws”), 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 of
its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(xxx)
Neither the Company, any of the Subsidiaries, nor, to the knowledge of the Company, any director, officer, employee, representative,
agent, or affiliate of the Company or any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury.
(xxxi)
No transaction has occurred or agreement or understanding entered into between or among the Company or any of its Subsidiaries
on the one hand, and any officer, director or 5% or greater shareholder of the Company or any Subsidiary or any affiliate of any such
officer, director or 5% or greater shareholder that is required to be described and is not so described in or incorporated by reference
into the Registration Statement or the Prospectus. Neither the Company nor any of its Subsidiaries has, directly or indirectly, extended
or maintained credit, or arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or
for any of its directors or executive officers in violation of applicable laws, including Section 402 of the Sarbanes-Oxley Act.
(xxxii) Except as set
forth or contemplated in the Registration Statement or the Prospectus, (A) neither the Company nor any of its Subsidiaries is in
violation of any applicable international, national, state or local convention, law, regulation, order, governmental license,
convention, treaty (including those promulgated by the International Maritime Organization) or other requirement relating to
pollution or protection of human health or safety (as they relate to exposure to Materials of Environmental Concern (as defined
below)) or protection of the environment (including, without limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or protection of natural resources, including without limitation, conventions, laws or regulations relating to
emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum, petroleum products or other hydrocarbons (collectively, “Materials of Environmental
Concern”), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern (collectively, “Environmental Laws”), nor has
the Company or any Subsidiary received any written communication, whether from a Governmental Authority, citizens group, employee or
otherwise, that alleges that the Company or any such Subsidiary is in violation of any Environmental Law or governmental license
required pursuant to Environmental Law, except, in each case, as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect; (B) there is no claim, action or cause of action filed with a court or Governmental
Authority and no investigation, or other action with respect to which the Company or any Subsidiary has received written notice
alleging potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries, attorneys’ fees or penalties arising out of, based on or resulting from the presence, or
release into the environment, of any Material of Environmental Concern at any location owned, leased or operated by the Company or
any Subsidiary, now or in the past, or from any vessel owned, leased or operated by the Company or any Subsidiary, now or in the
past (collectively, “Environmental Claim”), pending or, to the knowledge of the Company, threatened
against the Company or any Subsidiary or any person or entity whose liability for any Environmental Claim the Company or any
Subsidiary has retained or assumed either contractually or by operation of law, except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; (C) to the knowledge of the Company, there are no past or
present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, emission,
discharge, presence or disposal of any Material of Environmental Concern, that reasonably would be expected to result in a violation
of any Environmental Law, require expenditures to be incurred pursuant to Environmental Law, or form the basis of an Environmental
Claim against the Company, any Subsidiary or against any person or entity whose liability for any Environmental Claim the Company or
any Subsidiary has retained or assumed either contractually or by operation of law, except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect (for the avoidance of doubt, the operation of vessels in the
ordinary course of business shall not be deemed, by itself, an action, activity, circumstance or condition set forth in this clause
(C)); and (D) none of the Company or any Subsidiary is subject to any pending proceeding under Environmental Law to which a
Governmental Authority is a party and which the Company reasonably believes is likely to result in monetary sanctions of US$100,000
or more. The Company has reasonably concluded that any existing compliance and remediation costs and liabilities arising under
Environmental Laws and resulting from the business, operations or properties of the Company or any Subsidiary would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated
in the Registration Statement or the Prospectus. In the ordinary course of its business, the Company conducts a periodic review of
the effect of Environmental Laws on the business, operations and properties of the Company and the Subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential liabilities to third parties) and no facts or circumstances have
come to the Company’s attention that could result in costs or liabilities that would be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(xxxiii)
Except as set forth or contemplated in the Registration Statement or the Prospectus, the Company and each of the Subsidiaries (A)
is in compliance, in all material respects, with applicable foreign, federal, state and local laws, rules, regulations, statutes and codes
promulgated by applicable governmental authorities (including pursuant to the Occupational Health and Safety Act) relating to the protection
of human health and safety in the workplace (“Occupational Laws”); (B) has received all material permits,
licenses or other approvals required of it under applicable Occupational Laws to conduct its business as currently conducted; and
(C) is in compliance, in all material respects, with all terms and conditions of such permit, license or approval. Except as set forth
or contemplated in the Registration Statement or the Prospectus, no action, proceeding, revocation proceeding, writ, injunction or claim
is pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries relating to Occupational Laws,
and the Company does not have knowledge of any facts, circumstances or developments relating to its operations or cost accounting practices
that could reasonably be expected to form the basis for or give rise to such actions, suits, investigations or proceedings.
(xxxiv) No dispute exists
with respect to any of the employees, independent contractors or consultants of the Company or any of its Subsidiaries or, to the knowledge
of the Company, is threatened or imminent, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s
or its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such
Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement. There has never been,
nor has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime, or other similar
labor disruption or dispute affecting the Company, the Subsidiaries or any of their employees. To the knowledge of the Company, no officer
of the Company or any Subsidiary is, or is expected to be, in violation of any term of any employment contract, confidentiality, disclosure
or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in
favor of any third party, and the continued employment of each such officer does not subject the Company or the Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and the Subsidiaries are in compliance with all U.S. federal, state, local
and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours,
except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(xxxv)
The Company has not, and to its knowledge no one acting on its behalf has, (A) taken, directly or indirectly, any action designed
to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale
of any of the Shares; (B) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Shares; or (C) paid
or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company, other than, in
the case of clauses (B) and (C), compensation paid to the Agent in connection with the sale of the 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.
(xxxvi) Other than the Agent,
no person or entity has the right to act as a placement agent, underwriter or as a financial advisor in connection with the sale of the
Shares contemplated hereby, and, as of the date hereof, the Company is not a party to any agreement with an agent or underwriter for
any other “at the market” offering or continuous equity transaction.
(xxxvii)
There is no transaction, arrangement or other relationship between the Company or any of the Subsidiaries and an unconsolidated
or other off balance sheet entity that is required to be disclosed by the Company in the Registration Statement or the Prospectus and
is not so disclosed or that otherwise would be reasonably likely to have a Material Adverse Effect.
(xxxviii) None of the Company,
its Subsidiaries, or any of their respective affiliates, nor any person or entity acting on their behalf (excluding the Agent) has, directly
or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause
the transactions contemplated by this Agreement to require approval of stockholders of the Company under any applicable stockholder approval
provisions, including, without limitation, under the rules and regulations of the NASDAQ Capital Market. None of the Company, its Subsidiaries,
their affiliates nor any person or entity acting on their behalf will take any action or steps that would cause the offering of any of
the Shares to be integrated with other offerings of securities of the Company.
(xxxix) Any statistical and
market-related data included in the Registration Statement and the Prospectus are based on or derived from sources that the Company believes
to be reliable and accurate and, to the extent required, the Company has obtained the written consent to the use of such data from such
sources.
(xl)
The Registration Statement is not the subject of a pending proceeding or, to the Company’s knowledge examination, under Section
8(d) or Section 8(e) of the Securities Act, and the Company is not the subject of a pending proceeding under Section 8A of the Securities
Act in connection with the offering of the Shares.
(xli)
There are no affiliations with any FINRA member firm among the Company’s officers, directors or, to the knowledge of the
Company, any 10% or greater shareholder of the Company, except as set forth in the Registration Statement or the Prospectus.
(xlii)
Neither the Company nor any Subsidiary or any of their respective properties or assets has any immunity from the jurisdiction of
any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or
otherwise) under the laws of the United States, the State of Israel or any political subdivisions thereof.
(xliii)
The Company is a “foreign private issuer” as defined in Rule 405 promulgated under the Securities Act.
(xliv)
The Company did not qualify as a “passive foreign investment company” within the meaning of Section 1297 of
the United States Internal Revenue Code of 1986, as amended, for its most recently completed taxable year, if any.
(xlv)
Each “forward-looking statement” (within the meaning of Section 27A of the Securities Act or Section 21E of
the Exchange Act) contained in the Registration Statement and the Prospectus has been made or reaffirmed with a reasonable basis and has
been disclosed in good faith.
(xlvi)
The Company has the power to submit, and pursuant to Section 18 of this Agreement has legally, validly, effectively and
irrevocably submitted, to the jurisdiction of any federal or state court in the State of New York, County of New York, and has the power
to designate, appoint and empower, and pursuant to Section 18 of this Agreement has legally, validly and effectively designated,
appointed and empowered, an agent for service of process in any suit or proceeding based on or arising under this Agreement in any federal
or state court in the State of New York.
(xlvii)
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement
fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules
and guidelines applicable thereto.
(b)
Any certificate signed by any officer of the Company and delivered to the Agent or the Agent’s counsel shall be deemed a
representation and warranty by the Company to the Agent as to the matters covered thereby.
(c)
At each Bringdown Date (as defined herein) and each Time of Sale, the Company shall be deemed to have affirmed each representation
and warranty contained in or made pursuant to this Agreement as of such date as though made at and as of such date (except that such representations
and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented on such date).
(d)
As used in this Agreement, references to matters being “material”
with respect to the Company shall mean a material event, change, condition, status or effect related to the condition (financial or otherwise),
properties, assets (including intangible assets), liabilities, business, prospects, operations or results of operations of the Company,
either individually or taken as a whole, as the context requires.
(e)
As used in this Agreement, the term “to the Company’s knowledge”
(or similar language) shall mean the knowledge of the executive officers and directors of the Company who are named in the Prospectus,
with the assumption that such executive officers and directors shall have made reasonable and diligent inquiry of the matters presented
(with reference to what is customary and prudent for the applicable individuals in connection with the discharge by the applicable individuals
of their duties as executive officers or directors of the Company).
2.
[Reserved.]
3.
Purchase, Sale and Delivery of Shares.
(a)
At the Market Sales. On the basis of the representations, warranties and agreements herein, 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
the Agent, acting as sales agent, the Shares up to an aggregate offering price of US$9,700,000 (the “Offering Size”);
provided, however, that in no event shall the Company issue or sell through the Agent such number of Shares that (a) exceeds the
number or dollar amount of Ordinary Shares registered on the Registration Statement, pursuant to which the Offering is being made, (b)
exceeds the number of authorized but unissued Ordinary Shares under the Company’s Articles of Association, as amended or (c) would
cause the Company or the offering of the Shares to not satisfy the eligibility and transaction requirements for use of Form F-3 (including,
if then applicable, General Instruction I.B.5 of Form F-3) (the lesser of (a), (b) and (c), the “Maximum Amount”).
Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in
this Section 3(a) on the number and aggregate sales price of 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.
(i)
For purposes of selling the Shares through the Agent, the Company hereby appoints the Agent as agent of the Company (including
in the event the Company increases the Offering Size) for the purpose of soliciting purchases of the Shares from the Company pursuant
to this Agreement, and the Agent agrees to use its commercially reasonable efforts to sell the Shares on the terms and subject to the
conditions stated herein.
(ii) Each time the
Company wishes to issue and sell the Shares hereunder (each, a “Transaction”), it will notify the Agent by
telephone or email to the appropriate individual listed on Schedule D hereto, using a form substantially similar to that set
forth on Schedule C hereto (a “Transaction Notice”) as to the maximum number of Shares to be sold
by the Agent on such day and in any event not in excess of the amount available for issuance under the Prospectus and the currently
effective Registration Statement, the time period during which sales are requested to be made, any limitation on the number of
shares that may be sold in any one (1) Trading Day (as defined below), and any minimum price below which sales may not be made. The
Transaction Notice shall originate from any of the individuals from the Company set forth on Schedule B (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 D, as such Schedule D may be amended from time to time. Subject to the terms and conditions
hereof and unless the sale of the Shares described therein has been declined, suspended, or otherwise terminated in accordance with
the terms of this Agreement, the Agent shall promptly acknowledge the Transaction Notice by e-mail (or by some other method mutually
agreed to in writing by the parties) and shall use its commercially reasonable efforts to sell all of the Shares so designated by
the Company in, and in accordance with the terms set forth in, the Transaction Notice; provided, however, that any
obligation of the Agent to use such commercially reasonable efforts shall be subject to the continuing accuracy of the
representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the
continuing satisfaction of the additional conditions specified in Section 5 of this Agreement. The gross sales price of the
Shares sold under this Section 3(a) shall be equal to the market price for the Ordinary Shares sold by the Agent under this Section
3(a) on the NASDAQ Capital Market at the time of such sale. For the purposes hereof, “Trading Day” means
any day on which Ordinary Shares are purchased and sold on the NASDAQ Capital Market or other principal market on which the Ordinary
Shares are listed or quoted.
(iii)
The Company or the Agent may, upon notice to the other party hereto by telephone or email to the respective individuals of the
other party set forth on Schedule D hereto, which confirmation shall be promptly acknowledged by the other party, suspend the Offering
for any reason and at any time, whereupon the Agent shall so suspend the offering of Shares until further notice is provided by the other
party to the contrary; provided, however, that such suspension or termination shall not affect or impair the parties’
respective obligations with respect to the Shares sold hereunder prior to the receipt by the Agent of such notice. Each of the parties
agrees that no such notice under this Section 3(a)(iii) shall be effective against the other unless it is made to one of the individuals
named on Schedule D hereto, as such Schedule may be amended from time to time.
(iv)
The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be successful in selling the Shares,
(B) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell 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 Shares as required under this Agreement, and (C) the Agent shall be under no obligation to
purchase shares on a principal basis pursuant to this Agreement.
(v)
The Agent may sell Shares by any method permitted by law to be an “at the market offering” as defined in Rule
415 under the Securities Act, including without limitation sales made directly on the NASDAQ Capital Market, on any other existing trading
market for the Ordinary Shares or to or through a market maker. The Agent may also sell Shares in privately negotiated transactions (which,
for the avoidance of doubt, shall not include block trades initiated on the NASDAQ Capital Market) with the Company’s prior written
approval.
(vi)
The compensation to the Agent for sales of the Shares, as agent of the Company, shall be a transaction fee equal to two-and-one-half
percent (2.5%) of the gross sales price for the Shares sold. The remaining proceeds, after further deduction for any transaction or other
fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company
for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction
referenced in the preceding sentence will be required.
(vii)
The Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close
of trading on the NASDAQ Capital Market each day in which the Shares are sold under this Section 3(a) setting forth the number
of the Shares sold on such day, the aggregate gross sale proceeds, the Net Proceeds to the Company, and the compensation payable by the
Company to the Agent with respect to such sales.
(viii) All Shares sold
pursuant to this Section 3(a) will be delivered by the Company to Agent for the accounts of the Agent on the second (2nd)
full business day following the date on which such Shares are sold, or at such other time and date as the Agent and the Company
determine pursuant to Rule 15c6-1(a) under the Exchange Act, each such time and date of delivery being herein referred to as a
“Settlement Date.” On each Settlement Date, the Shares sold through the Agent for settlement on such date
shall be issued and delivered by the Company to the Agent against payment of the Net Proceeds from the sale of such Shares.
Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent (i) to the
Agent or its designee’s account (provided that the Agent shall have given the Company written notice of such designee prior to
the Settlement Date) at The Depository Trust Company (“DTC”) or (ii) by such other means of delivery as
may be mutually agreed upon by the parties hereto, which in all cases (provided that such Shares were sold pursuant to the
Registration Statement) shall be freely tradable, transferable, registered shares in good deliverable form, in return for payment in
same day funds delivered to an account designated by the Company. If the Company or its transfer agent (if applicable) shall default
on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Agent harmless against
any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which
it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the Net Proceeds on
any Settlement Date for the shares delivered by the Company, the Agent will pay the Company interest based on the effective prime
rate until such proceeds, together with such interest, have been fully paid.
(ix)
Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect to the sale of
such Shares, the aggregate gross sales proceeds sold pursuant to this Agreement would exceed the lesser of (A) together with all sales
of 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 Shares at a price lower than
the minimum price authorized from time to time by the Company’s board of directors, duly authorized committee thereof or a duly
authorized executive committee, and notified to the Agent in writing.
(x)
Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are satisfied with respect to
the Shares, the Company shall give the Agent at least one (1) Business Day’s prior notice of its intent to sell any Shares in order
to allow the Agent time to comply with Regulation M. As used herein, the term “Business Day” shall mean any
day other than Saturday, Sunday, any day which is a federal legal holiday in the United States, or other day on which banking institutions
in the State of New York are authorized or required by law to remain closed; provided, however, that banks shall not be deemed
to be authorized or obligated to be closed due to a “shelter in place,” “non-essential employee” or similar closure
of physical branch locations at the direction of any governmental authority if such banks’ electronic funds transfer systems (including
for wire transfers) are open for use by customers on such day.
(xi)
The Company agrees that during the term of this Agreement, any offer to sell, any solicitation of an offer to buy, or any sales
of Shares in an “at the market offering” as defined in Rule 415 under the Securities Act, including pursuant to Section
4(o) of this Agreement, shall only be effected by or through the Agent; provided, however, that the foregoing limitation
shall not apply to the exercise of any outstanding option or warrant described in the Registration Statement and the Prospectus.
(b)
Nothing herein contained shall constitute the Agent to be in an unincorporated association with, or a partner of, the Company.
Under no circumstances shall any Shares be sold pursuant to this Agreement after the date which is three (3) years after the Registration
Statement first became effective.
(c)
Notwithstanding any other provisions of this Agreement, the Company agrees that no sale of Shares shall take place, and the Company
shall not request the sale of any Shares, and the Agent shall not be obligated to sell, during any period in which the Company is, or
could be deemed to be, in possession of material non-public information.
4. Covenants.
The Company covenants and agrees with the Agent as follows:
(a) After the date hereof
and through any Prospectus Delivery Period, prior to amending or supplementing the Registration Statement (including any Rule 462(b)
Registration Statement), the Prospectus or any Permitted Free Writing Prospectus, the Company shall furnish to the Agent for review
a copy of each such proposed amendment or supplement, allow the Agent a reasonable amount of time to review and comment on such
proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Agent or
counsel to the Agent reasonably object; provided, that the Company has no such obligation to provide the Agent or
counsel to the Agent any advance copy of such filing or to provide the Agent or counsel to the Agent an opportunity to object to
such filing (i) if the filing does not name the Agent or does not relate to the Offering and (ii) with regards to the filing by the
Company of any Form 20-F, Form 6-K or other Incorporated Document. Subject to this Section 4(a), immediately following
execution of this Agreement, if not previously prepared, the Company will prepare, if mutually agreed upon by the Company and the
Agent, a Permitted Free Writing Prospectus containing the selling terms of the Shares hereunder and such other information as the
Company and the Agent may deem appropriate, and will file or transmit for filing with the Commission, in accordance with Rule 433,
copies of each such Permitted Free Writing Prospectus.
(b)
After the date of this Agreement, the Company shall promptly advise the Agent in writing (i) of the receipt of any comments of,
or requests for additional or supplemental information from, the Commission or for any amendments or supplements to the Registration Statement,
the Prospectus or any Permitted Free Writing Prospectus (excluding any Incorporated Documents), (ii) of the time and date of any filing
of any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Permitted Free Writing
Prospectus (excluding any Incorporated Documents), (iii) of the time and date that any post-effective amendment to the Registration Statement
becomes effective, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment thereto or of any order preventing or suspending its use or the use of the Prospectus or any Permitted
Free Writing Prospectus, or (v) of any proceedings to remove, suspend or terminate from listing or quotation the Ordinary Shares from
any securities exchange upon which it is listed for trading or included or designated for quotation, or, subject to the Company’s
knowledge, of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order
at any time, the Company may terminate this agreement. Additionally, the Company agrees that it shall comply with the provisions of Rules
424(b), 430B and 430C, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings made by
the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission (without reliance on Rule 424(b)(8)
or Rule 164(b)).
(c)
(i) From the date hereof through the later of (A) the termination of this Agreement and (B) the end of any applicable Prospectus
Delivery Period, the Company will comply in all material respects with all requirements imposed upon it by the Securities Act, as now
and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far as necessary to
permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof, the Prospectus and any Permitted
Free Writing Prospectus. If during any applicable Prospectus Delivery Period any event occurs as a result of which the Prospectus or any
Permitted Free Writing Prospectus 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 any applicable Prospectus Delivery
Period it is necessary or appropriate in the opinion of the Company or its counsel, or in the reasonable opinion of the Agent or counsel
to the Agent, to amend the Registration Statement or supplement the Prospectus or any Permitted Free Writing Prospectus, to comply with
the Securities Act or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, the Company will promptly notify Agent (or the Agent will notify the Company,
as applicable), and the Agent shall suspend the offering and sale of any such Shares, and the Company will amend the Registration Statement
or supplement the Prospectus or any Permitted Free Writing Prospectus or file such document (at the expense of the Company) so as to correct
such statement or omission or effect such compliance within the time period prescribed by the Securities Act or the Exchange Act.
(ii)
In case the Agent is required to deliver (whether physically or through compliance with Rule 172 under the Securities Act or any
similar rule), in connection with the sale of the Shares, a Prospectus after the nine (9) month period referred to in Section 10(a)(3)
of the Securities Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a)
of Regulation S-K under the Securities Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments
to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of
the Securities Act or Item 512(a) of Regulation S-K under the Securities Act, as the case may be. The Company shall 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 which would be deemed to be incorporated by reference therein, to be filed with the Commission
as required pursuant to the Exchange Act, within the time period prescribed.
(iii)
If at any time following issuance of a Permitted Free Writing Prospectus there occurs an event or development as a result of which
such Permitted Free Writing Prospectus would conflict with the information contained in the Registration Statement or the Prospectus,
or would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company promptly will notify the Agent
and will promptly amend or supplement, at its own expense, such Permitted Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
(d)
The Company shall use commercially reasonable efforts to take or cause to be taken all necessary action to qualify the Shares for
sale under the securities laws of such jurisdictions as the Agent reasonably designates and to continue such qualifications in effect
so long as required for the distribution of the Shares, except that the Company shall not be required in connection therewith to (i) qualify
as a foreign corporation in any state, (ii) execute a general consent to service of process in any state or (iii) subject itself to taxation
in any jurisdiction in which it would not otherwise be subject. The Company shall promptly advise the Agent of the receipt by the Company
of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose.
(e)
The Company will furnish to the Agent and counsel for the Agent, to the extent requested, copies of the Registration Statement,
the Prospectus, any Permitted Free Writing Prospectus, and all amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Agent may from time to time reasonably request.
(f)
The Company will make generally available to its security holders as soon as practicable an earnings statement (which need not
be audited) covering a twelve (12) month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
of the Rules and Regulations. If the Company makes any public announcement or release disclosing its results of operations or financial
condition for a completed quarterly, semi-annual or annual fiscal period (each, an “Earnings Release”) and the
Company has not yet filed an annual report on Form 20-F or a Form 6-K with respect to such information, as applicable, then, prior to
any sale of Shares, the Company shall be obligated to (x) file a prospectus supplement with the Commission under the applicable paragraph
of Rule 424(b), which prospectus supplement shall include the applicable financial information or (y) furnish a Report on Form 6-K, which
Form 6-K shall include the applicable financial information.
(g) The Company, whether or
not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay or cause to be paid (i) all expenses
(including stock or transfer taxes and stamp or similar duties allocated to the respective transferees) incurred in connection with the
registration, issue, and initial sale and delivery of the Shares, (ii) all reasonable expenses and fees (including, without limitation,
fees and expenses of the Company’s accountants and counsel) in connection with the preparation, printing, filing, delivery, and
shipping of the Registration Statement (including the financial statements therein and all amendments, schedules, and exhibits thereto),
each supplement to the Prospectus, any Permitted Free Writing Prospectus, and any amendment thereof or supplement thereto, and the producing,
word-processing, printing, delivery, and shipping of this Agreement and other closing documents, including Blue Sky Memoranda (covering
the states and other applicable jurisdictions) prepared by counsel, if required, and including the cost to furnish copies of each thereof
to the Agent, (iii) all filing fees, (iv) listing fees, if any, (v) the cost and expenses of the Company relating to investor presentations
or any “roadshow” undertaken in connection with marketing of the Shares as agreed to by the Company, and (vi) all other costs
and expenses of the Company incident to the performance of its obligations hereunder that are not otherwise specifically provided for
herein. The Company shall reimburse the Agent upon request for its reasonable and documented costs and out-of-pocket expenses incurred
in connection with this Agreement, including the fees and disbursements of its legal counsel of up to US$50,000 for actual, accountable
expenses incurred by the Agent (including legal fees and disbursements). In connection with its services hereunder, the Company has paid
an advance of $15,000 to the Agent, which advance shall be credited against such reimbursement obligation; provided, however,
that, in the event that an Offering is not consummated hereunder, the Agent shall refund such advance to the Company to the extent that
such advance is not used for the reimbursement of out-of-pocket accountable expenses actually incurred by the Agent in compliance with
FINRA Rule 5110(g)(4)(A). In addition, the Company shall pay the Agent US$2,500 for its legal fees for each Bringdown Date, except for
a Bringdown Date occurring at a time at which no Transaction Notice is pending. All such reimbursements under this Agreement shall be
paid in U.S. dollars.
(h) The
Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption “Use of Proceeds”
in the Prospectus and any Permitted Free Writing Prospectus.
(i) The
Company will not, without (i) giving the Agent at least five (5) business days’ prior written notice specifying the nature of the
proposed sale and the date of such proposed sale and (ii) the Agent’s suspending activity under this Agreement for such period of
time as requested by the Company or as reasonably deemed appropriate by the Agent in light of the proposed sale, offer for sale, sell,
contract to sell, pledge, grant any option for the sale of, enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by
the Company or any Subsidiary, or otherwise issue or dispose of, directly or indirectly (or publicly disclose the intention to make any
such offer, sale, pledge, grant, issuance or other disposition), of any Ordinary Shares or any securities convertible into or exchangeable
for, or any options or rights to purchase or acquire, Ordinary Shares, or permit the registration under the Securities Act of any Ordinary
Shares, such securities, options or rights, except for (A) the registration of the Shares and the sales through the Agent pursuant to
this Agreement (B) the registration of Ordinary Shares issued or issuable with respect to any currently outstanding options and warrants
that are described in the Registration Statement or the Prospectus and (C) a registration statement on Form S-8 relating to employee benefit
plans.
(j) The
Company shall not offer or sell any Shares under this Agreement by means of any “prospectus” (within the meaning of
the Securities Act), or use any “prospectus” (within the meaning of the Securities Act) in connection with the offer
or sale of the Shares, in each case other than the Prospectus or any Permitted Free Writing Prospectus.
(k) Until
the termination of this Agreement, the Company will not take, directly or indirectly, any action designed to or that would constitute
or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation in violation
of the Securities Act, the Exchange Act, the Israeli Securities Law or the rules and regulations thereunder of the price of any security
of the Company to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.
The Company shall notify the Agent of any violation of Regulation M by the Company or any of its officers or directors promptly after
the Company has received notice or obtained knowledge of any such violation.
(l) The
Company will not incur any liability for any finder’s or broker’s fee or agent’s commission in connection with the execution
and delivery of this Agreement or the consummation of the transactions contemplated hereby or thereby, except as contemplated herein.
(m) During
any applicable Prospectus Delivery Period, the Company will file on a timely basis with the Commission such periodic and current reports
as required by the Rules and Regulations.
(n) Except
as described in the Company’s annual report on Form 20-F for the fiscal year ended December 31, 2022, the Company has maintained,
and 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 its principal financial officer, or persons performing similar functions, as
appropriate to allow timely decisions regarding required disclosure, to ensure that material information relating to Company is made known
to them by others within those entities.
(o) Each
of the Company and Agent represent and agree that, neither the Company nor the Agent has made nor will make any offer relating to the
Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Securities Act,
or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act, required
to be filed with the Commission other than a Permitted Free Writing Prospectus. The Company represents that it has treated or 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
Commission filing where required, legending and record keeping.
(p) On
the date hereof and each date when the Company (A) amends or supplements (other than a supplement to a Prospectus filed pursuant to Rule
424(b) under the Securities Act relating solely to the offering of securities other than the Shares) the Registration Statement or Prospectus
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 Shares, (B) files an annual report on Form 20-F under the Exchange Act (including any Form
20-F/A containing amended material financial information or a material amendment to the previously filed Form 20-F) or (C) files a report
on Form 6-K containing quarterly or semi-annual financial statements that are incorporated by reference in the Registration Statement
and Prospectus (each of the dates in (A) through (C) are referred to herein as a “Bringdown Date”), the Agent
shall receive a favorable opinion and negative assurance letter of Sullivan & Worcester LLP, U.S. counsel for the Company, together
with an opinion of Sullivan & Worcester Israel (Har-Even & Co.), counsel for the Company on issues of Israeli law, and Kligler
& Associates PC, special intellectual property counsel for the Company, each in form and substance reasonably satisfactory to the
Agent and its counsel and dated as of a date within ten (10) days after the applicable Bringdown Date, addressed to the Agent and modified
as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinions.
With respect to this Section 4(p), in lieu of delivering such opinions or letters for Bringdown Dates subsequent to the date hereof,
such counsel may furnish the Agent with a letter (a “Reliance Letter”) to the effect that Agent may rely upon
a prior opinion or letter delivered under this Section 4(p) to the same extent as if it were dated the date of such letter (except
that statement 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 such Reliance Letter); provided, however, the requirement to provide opinions and letters under this Section
4(p) is hereby waived for any Bringdown Date occurring at a time at which the Company (i) delivers an Alternate CFO Certificate (as
defined below) in lieu of a Bringdown Comfort Letter (as defined below) or (ii) has not provided to the Agent a Transaction Notice, which
waiver shall continue until the earlier to occur of the date the Company delivers a Transaction Notice hereunder and the next occurring
Bringdown Date.
Notwithstanding the foregoing, if the Company
subsequently decides to sell Shares following a Bringdown Date when the Company relied on such waiver and did not provide Agent with opinions
and letters under this Section 4(p), then before the Company delivers the Transaction Notice or Agent sells any Shares, the Company
shall cause Sullivan & Worcester LLP, Sullivan & Worcester Israel (Har-Even & Co.), and Kligler & Associates PC to furnish
to the Agent the applicable opinions and/or reliance letter dated as of the date of the Transaction Notice.
(q) On
the date hereof, and each date when the Company files an annual report on Form 20-F, or a report on Form 6-K containing quarterly or semi-annual
financial statements (or files a report containing amended annual, quarterly or semi-annual financial statements) that is incorporated
by reference in the Registration Statement and Prospectus, the Company shall cause Deloitte, or other independent accountants reasonably
satisfactory to the Agent, to deliver to the Agent (A) a letter, dated as of a date within ten (10) days after such date and addressed
to Agent, in form and substance reasonably satisfactory to Agent and its counsel (the first such letter, the “Initial Comfort
Letter”), confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and
stating the conclusions and findings of said firm with respect to the financial information and other matters and (B) a letter 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 as modified as necessary to relate to the date of such letter (each such letter, a “Bringdown Comfort Letter”).
Notwithstanding the forgoing, if the Company files a report on Form 6-K containing only capsule financial information or preliminary or
estimated financial statements (or amendments thereof) of the Company for the first or third fiscal quarter end, then the Company may
deliver to the Agent a certificate of the Company’s chief financial officer substantially in the form attached hereto as Schedule
E, or in such other form or forms as are reasonably acceptable to counsel for the Agent (the “Alternate CFO Certificate”)
in lieu of a Bringdown Comfort Letter. The requirement to provide a Bringdown Comfort Letter or Alternate CFO Certificate under this Section
4(q) is hereby waived for any Bringdown Date occurring at a time at which no Transaction Notice is pending, which waiver shall continue
until the earlier to occur of the date the Company delivers a Transaction Notice hereunder and the next occurring Bringdown Date; provided,
however, if the Company subsequently decides to sell Shares following a Bringdown Date when the Company relied on such waiver and
did not provide the Agent with a Bringdown Comfort Letter or Alternate CFO Certificate under this Section 4(q), then before the
Company delivers the Transaction Notice or the Agent sell any Shares, the Company shall cause Deloitte, or other independent accountants
reasonably satisfactory to the Agent, to deliver to the Agent a Bringdown Comfort Letter or provide an Alternate CFO Certificate, as applicable,
dated the date of the Transaction Notice and in form and substance reasonably acceptable to the Agent’s counsel.
(r) On
the date hereof and each Bringdown Date, the Company shall furnish to the Agent a certificate (which shall be deemed to relate to the
Registration Statement and Prospectus as amended and supplemented on such date), dated as of a date within ten (10) days after the applicable
Bringdown Date and addressed to Agent, signed by the chief executive officer and chief financial officer of the Company, to the effect
that:
(i) The
representations and warranties of the Company in this Agreement are true and correct in all material respects as if made at and as of
the date of the certificate and the Company has complied in all material respects with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the date of the certificate;
(ii) No
stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the
qualification of the Shares for offering or sale or notice that would prevent use of the Registration Statement, nor suspending or preventing
the use of the Prospectus or any Permitted Free Writing Prospectus, has been issued, and no proceeding for that purpose has been instituted
or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body;
(iii) The
Shares to be sold on that date have been duly and validly authorized by the Company and all corporate action required to be taken for
the authorization, issuance and sale of the Shares on that date has been validly and sufficiently taken;
(iv) Subsequent
to the respective dates as of which information is given in the Prospectus or any Permitted Free Writing Prospectus, as amended and supplemented,
and except for pending transactions disclosed therein, the Company has not incurred any material liabilities or obligations, direct or
contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made
any distribution of any kind with respect to its capital stock, and there has not been any material change in the capital stock or any
material issuances of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result
of the exercise of any currently outstanding options or warrants that are disclosed in the Registration Statement or the Prospectus),
or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would
reasonably be likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material
loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company; and
(v) Except
as stated in the Prospectus and any Permitted Free Writing Prospectus, as amended and supplemented, there is not pending, or, to the knowledge
of the Company, threatened or contemplated, any action, suit or proceeding to which the Company is a party before or by any court or governmental
agency, authority or body, or any arbitrator, which if determined in a manner adverse to the Company would reasonably be likely to result
in any Material Adverse Effect; provided, however, the requirement to provide a certificate under this Section 4(r) is hereby
waived for any Bringdown Date occurring at a time at which no Transaction Notice is pending, which waiver shall continue until the earlier
to occur of the date the Company delivers a Transaction Notice hereunder and the next occurring Bringdown Date. Notwithstanding the foregoing,
if the Company subsequently decides to sell Shares following a Bringdown Date when the Company relied on such waiver and did not provide
the Agent with a certificate under this Section 4(r), then before the Company delivers the Transaction Notice or Agent sells any
Shares, the Company shall provide the Agent with a certificate dated the date of the Transaction Notice.
(s) A
reasonable time prior to each Bringdown Date, the Company, if so requested by the Agent, shall conduct a due diligence session, in form
and substance, reasonably satisfactory to the Agent, which shall include representatives of the management and the accountants of the
Company.
(t) The
Company shall disclose in its annual report on Form 20-F and its reports on Form 6-K with quarterly or semi-annual financial information
the number of Shares sold through the Agent under this Agreement, the Net Proceeds to the Company and the compensation paid by the Company
with respect to sales of the Shares pursuant to this Agreement.
(u) The
Company shall ensure that there are at all times sufficient Ordinary Shares pursuant to the Company’s Articles of Association, as
amended, to provide for the issuance, free of any preemptive rights, out of its authorized but unissued Ordinary Shares or Ordinary Shares
held in treasury, of the maximum aggregate number of Shares authorized for issuance by the Company’s board of directors pursuant
to the terms of this Agreement. The Company will use its reasonable best efforts to cause the Shares to be listed on the NASDAQ Capital
Market, and to maintain such listing. The Company shall cooperate with the Agent and use its reasonable efforts to permit Shares to be
eligible for clearance and settlement through the facilities of DTC.
(v) At
any time during the term of this Agreement, the Company will advise the Agent promptly after it receives notice or obtains knowledge of
any information or fact that would materially alter or affect any opinion, certificate, letter and other document provided to the Agent
pursuant to Section 4 herein.
(w) Subject
to compliance with any applicable requirements of Regulation M under the Exchange Act and compliance with applicable securities laws,
the Company consents to the Agent trading in Ordinary Shares for the Agent’s own account and for the account of its clients (in
compliance with all applicable laws) at the same time as sales of the Shares occur pursuant to this Agreement.
(x) If
to the knowledge of the Company, any condition set forth in Section 5 of this Agreement shall not have been satisfied on the applicable
Settlement Date, the Company will offer to any person who has agreed to purchase the Shares on such Settlement Date from the Company as
the result of an offer to purchase solicited by the Agent the right to refuse to purchase and pay for such Shares.
(y) On
the date hereof and each Bringdown Date, the Company shall furnish to the Agent a certificate from the Company’s corporate secretary,
dated as of a date within 10 days after the applicable Bringdown Date and addressed to Agent, certifying: (i) that the Articles of Association
is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s board of
directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company; and
(iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(z) On
the date hereof and each Bringdown Date, the Company shall furnish to the Agent a certificate from the Company’s Chief Financial
Officer, dated as of a date within 10 days after the applicable Bringdown Date and addressed to the Agent, with respect to certain financial
information contained or incorporated by reference in the Registration Statement and the Prospectus, as amended and supplemented to the
date of such certificate, in form and substance reasonably satisfactory to the Agent.
(aa) Each acceptance by the
Company of an offer to purchase the Shares hereunder shall be deemed to be an affirmation to the Agent that the representations and warranties
of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance as though made at
and as of such date, and an undertaking that such representations and warranties will be true and correct as of the Settlement Date for
the Shares relating to such acceptance, as though made at and as of such date (except that such representations and warranties shall be
deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares).
(bb) To the extent that the
Registration Statement is not available for the sales of the Shares as contemplated by this Agreement, the Company shall file a new registration
statement with respect to any additional Ordinary Shares necessary to complete such sales of the Shares and shall cause such registration
statement to become effective as promptly as practicable. After the effectiveness of any such registration statement, all references to
“Registration Statement” included in this Agreement shall be deemed to include such new registration statement, including
all documents incorporated by reference therein pursuant to Item 6 of Form F-3, and all references to “Prospectus” included
in this Agreement shall be deemed to include the final form of prospectus relating to the Shares, including all documents incorporated
therein by reference, included in any such registration statement at the time such registration statement became effective.
5.
Conditions of Agent’s Obligations. The obligations of the Agent hereunder
are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such
date), and compliance with, all representations, warranties and agreements of the Company contained herein (which representations and
warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented on such date), (ii)
the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) If
the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the
Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted
Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or
Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration
Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use
of the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order
shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration
Statement, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent’s satisfaction.
(b) The
Agent shall not have advised the Company that the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any
Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent’s opinion, is material, or omits to
state a fact which, in the Agent’s opinion, is material and is required to be stated therein or is necessary to make the statements
therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Prospectus or any Permitted Free Writing
Prospectus, in light of the circumstances under which they were made, not misleading.
(c) Except
as set forth or contemplated in the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which
information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered
into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock
and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights
to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed
in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material
Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the
ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered
by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent’s judgment, makes it
impractical or inadvisable to offer or deliver the Shares.
(d) The
Company shall have performed each of its obligations under Sections 4(p), (q), (r), (y) and (z).
(e) FINRA
shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement.
(f) All
filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made
within the applicable time period prescribed for such filing by Rule 424.
(g) The
Company shall have furnished to Agent and the Agent’s counsel such additional documents, certificates and evidence as they may have
reasonably requested.
(h) Trading
in the Ordinary Shares shall not have been suspended on the NASDAQ Capital Market.
All such opinions, certificates, letters and other
documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and
the Agent’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other
documents as the Agent shall reasonably request.
6. Indemnification
and Contribution.
(a) (i)
The Company agrees to indemnify and hold harmless the Agent and each of the other Indemnified Parties (as defined below) from and against,
and pay on demand for, any and all losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses and
disbursements, and any and all actions, suits, proceedings and investigations in respect thereof and any and all legal and other costs,
expenses and disbursements in giving testimony or furnishing documents in response to subpoena or otherwise (including, without limitation,
the costs, expenses and disbursements, as and when incurred, of investigating, preparing, pursuing or defending any such action, suit,
proceeding or investigation (whether or not in connection with litigation in which any Indemnified Party is a party)) (collectively, “Losses”),
directly or indirectly, caused by, relating to, based upon, arising out of, or in connection with this Agreement, including, without limitation,
any act or omission by the Agent in connection with its acceptance of or the performance or non-performance of its obligations under the
Agreement, any and all Losses as incurred arising out of or based upon any 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 Permitted Free Writing Prospectus, the Base Prospectus, any Prospectus Supplement and 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, any breach by the Company of any representation,
warranty, covenant or agreement contained in the Agreement (or in any instrument, document or agreement relating thereto, including any
agency agreement), or the enforcement by the Agent of its rights under the Agreement or these indemnification provisions, except to the
extent that any such Losses are found in a final judgment by a court of competent jurisdiction (not subject to further appeal) to have
resulted primarily and directly from the gross negligence or willful misconduct of the Indemnified Party seeking indemnification hereunder;
provided, however, that the Company will not be liable to the extent that such Loss arises from the sale of the Shares pursuant
to this Agreement and is caused directly by an untrue statement or omission made in reliance upon and in strict conformity with written
information relating to the Agent and furnished to the Company by the Agent or its agents expressly for inclusion in any document described
or contained in the Registration Statement or the Prospectus or any amendment or supplement thereto. The Company also agrees that no Indemnified
Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection with
this Agreement for any other reason, except to the extent that any such liability is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily and directly from such Indemnified Party’s fraud, gross
negligence or willful misconduct. This indemnity will be in addition to any liability that the Company otherwise might have.
(ii) These
indemnification provisions shall extend to the following persons (collectively, the “Indemnified Parties”):
the Agent, its present and former affiliates, managers, members, officers, employees, legal counsel, agents and controlling persons (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the officers, directors, partners, stockholders,
members, managers, employees, legal counsel, agents and controlling persons of any of them. These indemnification provisions shall be
in addition to any liability which the Company may otherwise have to any Indemnified Party.
(iii) If
any action, suit, proceeding or investigation is commenced, as to which an Indemnified Party proposes to demand indemnification, it shall
notify the Company with reasonable promptness; provided, however, that any failure by an Indemnified Party to notify the Company
shall not relieve the Company from its obligations hereunder except to the extent that the Company is actually and materially prejudiced
by such failure to notify. An Indemnified Party shall have the right to retain counsel of its own choice to represent it, and the fees,
expenses and disbursements of such counsel shall be borne by the Company. Any such counsel shall, to the extent consistent with its professional
responsibilities, cooperate with the Company and any counsel designated by the Company. The Company shall be liable for any settlement
of any claim against any Indemnified Party made with the Company’s written consent. The Company shall not, without the prior written
consent of the Agent, settle or compromise any claim, or permit a default or consent to the entry of any judgment in respect thereof,
unless such settlement, compromise or consent (A) includes, as an unconditional term thereof, the giving by the claimant to all of the
Indemnified Parties of an unconditional release from all liability in respect of such claim, and (B) does not contain any factual or legal
admission by or with respect to an Indemnified Party or an adverse statement with respect to the character, professionalism, expertise
or reputation of any Indemnified Party or any action or inaction of any Indemnified Party.
(b) (i)
The Agent will indemnify and hold harmless the Company and its affiliates and 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 (the “Company Indemnified Parties”) from and against any Losses to which the Company
or the Company Indemnified Parties may become subject, under the Securities Act or otherwise (including in settlement of any litigation,
if such settlement is effected with the written consent of the Agent), insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or omission or alleged untrue statement or omission of a material
fact contained in the Registration Statement, any Base Prospectus, Prospectus Supplement, the Prospectus, or any amendment or supplement
thereto or any Permitted Free Writing Prospectus, but only and solely to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, any Base Prospectus, Prospectus Supplement, the Prospectus, or
any amendment or supplement thereto, or any Permitted Free Writing Prospectus in reliance upon and in conformity with written information
furnished to the Company by the Agent expressly for use in the preparation thereof, it being understood and agreed that the only information
furnished by the Agent consists of the information described as such in Section 6(b)(ii) hereof, by the Company in connection with
investigating or defending against any such loss, claim, damage, liability or action.
(ii) The
Agent confirms and the Company acknowledges that as of the date hereof no information has been furnished in writing to the Company by
or on behalf of the Agent specifically for inclusion in the Registration Statement, any Base Prospectus, Prospectus Supplement, the Prospectus
or any Permitted Free Writing Prospectus, other than information about the Agent included in the Prospectus Supplement under the heading
“Plan of Distribution.”
(c) If
the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of
the losses, claims, damages or liabilities referred to in subsection (a) or (b) above, (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the Agent on the other from the Offering or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on the one hand and the Agent on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Agent on the other shall be deemed to be in the same proportion
as the total net proceeds from the Offering (before deducting expenses) received by the Company and the total commissions received by
the Agent from the sale of the Shares. The relative fault shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied
by the Company or the Agent and the parties’ relevant intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Agent agree that it would not be just and equitable if contributions pursuant to
this subsection (c) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the
equitable considerations referred to in the first sentence of this subsection (c). The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (c) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending against any action
or claim which is the subject of this subsection (c). Notwithstanding the provisions of this subsection (c), the Agent shall not be required
to contribute any amount in excess of the amount by which the total aggregate price at which the Shares were sold under this Agreement
exceeds the amount of any damages that the Agent has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(d) Neither
termination of this Agreement nor completion of the Offering shall affect these indemnification provisions, which shall remain operative
and in full force and effect. The indemnification provisions shall be binding upon the Company and the Agent and their respective successors
and assigns and shall inure to the benefit of the Indemnified Parties and the Company Indemnified Parties and their respective successors,
assigns, heirs and personal representatives.
7. Representations
and Agreements to Survive Delivery. All representations and warranties of the
Company herein or in certificates delivered pursuant hereto, and agreements of the Agent and the Company herein, including but not
limited to the agreements of the Agent and the Company contained in Section 6 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the Agent or any controlling person thereof, or the Company
or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the Shares to and by the
Agent hereunder.
8.
Termination of this Agreement.
(a) The
Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time upon five (5) days’ prior written notice.
Any such termination shall be without liability of any party to any other party except that (i) if the Shares have been sold through the
Agent for the Company, then Section 4(x) shall remain in full force and effect, (ii) with respect to any pending sale, through
the Agent for the Company, the obligations of the Company and the Agent with respect to such pending sale of Shares, including in respect
of compensation of the Agent and the payment of Net Proceeds of the Company, shall remain in full force and effect notwithstanding such
termination and (iii) the provisions of Section 4(g), Section 6 and Section 7 of this Agreement shall remain in full
force and effect notwithstanding such termination.
(b) The
Agent shall have the right, by giving written notice as specified herein, to terminate the provisions of this Agreement relating to the
solicitation of offers to purchase the Shares in its sole discretion at any time upon five (5) days’ prior written notice. Any such
termination shall be without liability of any party to any other party except that (i) the provisions of the last three sentences of Section
4(g) and the entirety of Section 6 and Section 7 of this Agreement shall remain in full force and effect notwithstanding
such termination and (ii) the provisions of Section 4(g) other than the last three sentences thereof shall remain in full force
and effect only if the Agent has terminated this Agreement as a result of the Company’s default of its obligations hereunder and
its failure to cure any default within a reasonable period of time.
(c) This
Agreement shall remain in full force and effect until (and including) January 12, 2025, unless terminated pursuant to Section 8(a)
or Section 8(b) above or otherwise by mutual agreement of the parties; provided that any such termination by mutual
agreement shall in all cases be deemed to provide that Section 4(g), Section 6 and Section 7 shall remain in full
force and effect. This Agreement shall terminate automatically upon the issuance and sale of Shares having an aggregate offering price
equal to the amount set forth in the first paragraph of this Agreement, except as otherwise set forth herein, including without limitation,
Section 4(g), Section 6 and this Section 8(c).
(d) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date for any sale of the Shares, such sale shall settle in accordance with
the provisions of Section 3(a) of this Agreement.
9.
Default by the Company. If the Company shall fail at any Settlement Date
to sell and deliver the number of Shares which it is obligated to sell hereunder, then this Agreement shall terminate without any liability
on the part of the Agent or, except as provided in Section 4(g) hereof, any non-defaulting party. No action taken pursuant to
this Section 9 shall relieve the Company from liability, if any, in respect of such default, and the Company shall (a) hold the
Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (b) pay the Agent any
commission to which it would otherwise be entitled absent such default.
10.
Notices. Except as otherwise provided herein, all communications
under this Agreement shall be in writing and, if to the Agent, shall be mailed, delivered or sent by facsimile or email transmission
to:
Maxim Group LLC
300 Park Avenue, 16th Floor
New York, New York 10022
Attention: Clifford A. Teller, Co-President
Email:
with a required copy (which shall
not constitute notice) to:
Thompson Hine LLP
300 Madison Avenue, 27th Floor
New York, New York 10017
Attention: Faith L. Charles
Email:
Notices to the Company shall be given
to it at:
IceCure Medical Ltd.
7 Ha’Eshel St. PO Box 3163
Caesarea, 3079504 Israel
Attention: Eyal Shamir
Email:
with a required copy (which shall
not constitute notice) to:
Sullivan & Worcester LLP
1633 Broadway, 32nd Floor
New York, New York 10019
Attention: Oded Har-Even, Esq.
Email:
Any 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.
11.
Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns and the controlling persons,
officers and directors referred to in Section 6. Nothing in this Agreement is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable remedy or claim under or in respect of this Agreement or any provision herein contained.
The term “successors and assigns” as herein used shall not include any purchaser, as such purchaser, of any of the Shares
from the Agent.
12.
Absence of Fiduciary Relationship. The Company acknowledges
and agrees that: (a) the Agent has been retained solely to act as sales agent and/or principal in connection with the sale of the Shares
and that no fiduciary, advisory or agency relationship between the Company and the Agent has been created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether the Agent has advised or is advising the Company on other matters; (b) the
price and other terms of the Shares set forth in this Agreement were established by the Company following discussions and arms-length
negotiations with the Agent and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this Agreement; (c) it has been advised 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 that the Agent has no obligation
to disclose such interest and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; (d) it has
been advised that the Agent is acting, in respect of the transactions contemplated by this Agreement, solely for the benefit of the Agent,
and not on behalf of the Company; and (e) it waives to the fullest extent permitted by law, any claims it may have against the Agent
for breach of fiduciary duty or alleged breach of fiduciary duty in respect of any of the transactions contemplated by this Agreement
and agrees that the Agent shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim
on behalf of or in right of the Company, including stockholders, employees or creditors of the Company.
13.
Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, including Section 5-1401 of the General Obligations Law of the State of New York,
but otherwise without regard to conflict of laws rules that would apply the laws of any other jurisdiction.
14.
Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original and all
such counterparts shall together constitute one and the same instrument. Such counterparts may be executed and delivered by electronic
(including email/.pdf) means, which shall not impair the validity of such execution and delivery.
15.
Adjustments for Stock Splits. The parties acknowledge and
agree that all share-related numbers contained in this Agreement shall be adjusted to take into account any stock split, stock dividend
or similar event effected with respect to the Shares.
16.
Entire Agreement; Amendment; Severability; Headings.
This Agreement (including all schedules and exhibits attached hereto and transaction 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. The section headings used in this Agreement are for convenience only and
shall not affect the construction hereof.
17.
Waiver of Jury Trial. Each of the Company and the Agent hereby
waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this Agreement or the transactions
contemplated hereby.
18.
Submission to Jurisdiction; Agent for Service. Except
as set forth below, no claim arising out of or in any way relating to this Agreement may be commenced, prosecuted or continued in any
court other than the courts of the State of New York located in the City and County of New York or in the United States District Court
for the Southern District of New York, which courts shall have non-exclusive jurisdiction over the adjudication of such matters, and
the Company consents to the jurisdiction of such courts and personal service with respect thereto. The Company hereby consents to personal
jurisdiction, service and venue in any court in which any claim arising out of or in any way relating to this Agreement is brought by
any third party against the Agent or any indemnified party. The Company has appointed IceCure Medical Inc., as its authorized agent (the
“Authorized Agent”) upon whom process may be served in any suit,
action or proceeding arising out of or based upon this Agreement or the transactions contemplated herein which may be instituted in any
New York Court, by the Agent, the directors, officers, partners, employees and Agent of the Agent and each affiliate of the Agent, and
expressly accept the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. The Company hereby
represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process,
and the Company agrees to take any and all action, including the filing of any and all documents that may be necessary to continue such
appointment in full force and effect as aforesaid. The Company hereby authorizes and directs the Authorized Agent to accept such service.
Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Company. If the
Authorized Agent shall cease to act as agent for service of process, the Company shall appoint, without unreasonable delay, another such
agent in the United States, and notify you of such appointment. Notwithstanding the foregoing, any action arising out of or based upon
this Agreement may be instituted by the Agent, the directors, officers, partners, employees and Agent of the Agent and each respective
affiliate of the Agent, in any court of competent jurisdiction in the Cayman Islands. This paragraph shall survive any termination of
this Agreement, in whole or in part. The Company agrees that a final judgment in any such action, proceeding or counterclaim brought
in any such court shall be conclusive and binding upon the Company and may be enforced in any other courts to the jurisdiction of which
the Company is or may be subject, by suit upon such judgment.
[Signature Page Follows]
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to the Company the enclosed duplicate of this Agreement, whereupon this
letter and your acceptance shall represent a binding agreement between the Company and the Agent in accordance with its terms.
|
Very truly yours, |
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|
|
ICECURE MEDICAL LTD. |
|
|
|
By: |
/s/ Eyal Shamir |
|
Name: |
Eyal Shamir |
|
Title: |
Chief Executive Officer |
Confirmed as of the date first above mentioned.
MAXIM GROUP LLC |
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By: |
/s/ Clifford A. Teller |
|
Name: |
Clifford A. Teller |
|
Title: |
Co-President |
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Schedule 1(a)(xxi)(B)
SCHEDULE A
PERMITTED FREE WRITING PROSPECTUS
SCHEDULE B
INDIVIDUALS PERMITTED TO AUTHORIZE SALES OF
SHARES
SCHEDULE C
FORM OF TRANSACTION NOTICE
SCHEDULE D
INDIVIDUALS TO WHICH NOTICE CAN BE GIVEN
Schedule
E
Form
of Alternate CFO Certificate
IceCure Medical (NASDAQ:ICCM)
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IceCure Medical (NASDAQ:ICCM)
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