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 June 2024
Commission File Number: 001-39461
NANO-X IMAGING LTD
Ofer Tech Park
94 Shlomo Shmeltzer Road
Petach Tikva
Israel 4970602
(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
On June 7, 2024, NANO-X IMAGING
LTD (the “Company”) entered into a Sales Agreement (the “Sales Agreement”) with Cantor Fitzgerald & Co.
and Mizuho Securities USA LLC (each, an “Agent” and, together, the “Agents”), pursuant to which the Company may
offer and sell, from time to time, its ordinary shares through a designated Agent in an “at the market offering” (the “ATM
Offering”), as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, for an aggregate offering price
of up to $100,000,000.
Any ordinary shares offered
in the ATM Offering will be issued pursuant to a shelf registration statement on Form F-3 (File No. 333-271688), as amended, and the prospectus
contained therein. The Agents may sell the Company’s ordinary shares by any method permitted by law deemed to be an ATM Offering,
including sales made directly on or through the Nasdaq Stock Market or any other existing trading market for the Company’s ordinary
shares, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices
and/or any other method permitted by law. The Agents will use their commercially reasonable efforts to sell the Company’s ordinary
shares from time to time, based upon its instructions (including any price, time or size limits or other parameters or conditions that
the Company may impose). The Company will pay to the designated Agent a cash commission of 3.0% of the gross proceeds from the sale of
any ordinary shares by such designated Agent under the Sales Agreement. The Company and the Agents have also provided each other with
customary indemnification rights.
The Company is not obligated
to make any sales of ordinary shares under the Sales Agreement and no assurance can be given that it will sell any ordinary shares under
the Sales Agreement, or, if it does, as to the price or number of such shares that it will sell, or the dates on which any such sales
will take place. The Sales Agreement may be terminated by either party as set forth in the Sales Agreement.
This Form 6-K shall not constitute
an offer to sell or the solicitation of an offer to buy any of the securities described herein, nor shall there be any sale of these securities
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.
The foregoing description
of the Sales Agreement is not complete and is qualified in its entirety by reference to the full text of the Sales Agreement, a copy of
which is filed herewith as Exhibit 10.1 and is incorporated herein by reference. The legal opinion of Meitar | Law Offices relating to
the legality of the issuance and sale of the ordinary shares under the Sales Agreement is attached as Exhibit 5.1 hereto.
The contents of this Form
6-K are incorporated by reference into the Company’s registration statements on Form F-3 (File No. 333-271688) and
Form S-8 (File No. 333-248322), filed with the SEC, to be a part thereof from the date on which this Form 6-K is submitted, to the
extent not superseded by documents or reports subsequently filed or furnished.
SIGNATURE
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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NANO-X IMAGING LTD
(Registrant) |
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|
|
| Date: June 7, 2024 |
By: |
/s/ Ran Daniel |
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|
Ran Daniel |
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|
Chief Financial Officer |
EXHIBIT INDEX
- 3 -
Exhibit 5.1
June 7, 2024
NANO-X IMAGING LTD.
Ofer Tech Park |
| 94 Shlomo Shmeltzer Road |
| Petach Tikva |
| Israel 4970602 |
Re: NANO-X IMAGING LTD.
Ladies and Gentlemen:
We
have acted as Israeli counsel for Nano-X Imaging Ltd., a company organized under the laws of the State of Israel (the “Company”),
in connection with the Controlled Equity OfferingSM Sales Agreement, dated as of June 7, 2024 (the “Sales Agreement”)
with Cantor Fitzgerald & Co. and Mizuho Securities USA LLC (the “Agents”), pursuant to which the Company has agreed
to offer and sell (the “Offering”) from time to time its ordinary shares having an aggregate offering price of up to
$100,000,000 (the “ATM Shares”). The ATM Shares will be issued pursuant to the shelf registration statement on Form
F-3 (File No. 333-271688) initially filed with the Securities and Exchange Commission (the “SEC”) under the Securities
Act of 1933, as amended (the “Securities Act”) on May 5, 2023 (“Basic Registration Statement”),
as amended by Post-Effective Amendment No. 1 thereto filed on July 26, 2023 (“Amendment No. 1”), as further amended
by Post-Effective Amendment No. 2 thereto filed on April 22, 2024 (“Amendment No. 2”), and as further amended by Post-Effective
Amendment No. 3 thereto filed on April 22, 2024 (“Amendment No. 3” and, the Basic Registration Statement, as so amended
by Amendment No. 1, Amendment No. 2 and Amendment No. 3, the “Registration Statement”), and which Amendment No. 3 was
declared effective by the SEC as of May 8, 2024, and the related prospectus contained therein covering, among other securities, the ATM
Shares.
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 amended and restated articles of association of the Company, as amended to the date hereof (the “Articles
of Association”); (iii) a draft of the prospectus supplement dated June 7, 2024 (the “Prospectus Supplement”);
(iv) the Sales Agreement; (v) resolutions of the board of directors (the “Board”) of the Company, which relate to the
Registration Statement and other actions to be taken in connection with the Offering; (vi) resolutions of the Board at which the execution
of the Sales Agreement and the actions to be taken in connection therewith were approved; and (vii) such other corporate records, agreements,
documents and other instruments, and such certificates or comparable documents of public officials and of officers 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 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. As to all questions of fact material to these opinions that have
not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company.
Based upon and subject to
the foregoing, we are of the opinion that, assuming that prior to the issuance of any of the ATM Shares under the Sales Agreement by the
Agents, the price, number of ATM Shares and certain other terms of issuance with respect to any specific placement notice delivered under
the Sales Agreement will be authorized and approved by the Board or a pricing committee of the Board in accordance with Israeli law, all
corporate proceedings necessary for the authorization, issuance and delivery of the ATM Shares shall have been taken and upon issuance
pursuant to the terms of the Sales Agreement and in accordance with resolutions of the Board related to the Offering, the ATM Shares as
described in the Prospectus Supplement will be validly issued, fully paid and non-assessable.
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 hereby consent to the furnishing
of this opinion as an exhibit to the Company’s report on Form 6-K dated June 7, 2024, which is incorporated by reference into the
Registration Statement and to the use of our name wherever it appears in the Registration Statement and the prospectus forming part of
the Registration Statement and the Prospectus Supplement. 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 promulgated 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 date of the Prospectus that may alter, affect or modify the opinions expressed herein.
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Very truly yours, |
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|
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/s/ Meitar | Law Offices |
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Meitar | Law Offices |
Exhibit 10.1
Execution Version
NANO-X IMAGING LTD
Ordinary Shares
Controlled Equity OfferingSM
Sales Agreement
June 7, 2024
Cantor Fitzgerald & Co.
110 East 59th Street, 6th Floor
New York, NY 10022
Mizuho Securities USA LLC
1271 Avenue of the Americas, 3rd
Floor
New York, NY 10020
Ladies and Gentlemen:
NANO-X IMAGING LTD, a company
organized under the laws of the State of Israel (the “Company”), confirms its agreement (this “Agreement”)
with Cantor Fitzgerald & Co. and Mizuho Securities USA LLC (each individually, an “Agent” and collectively,
the “Agents”), as follows:
1. Issuance
and Sale of Ordinary Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may issue and sell to or through an Agent (the “Designated Agent”), ordinary
shares (the “Placement Shares”) par value NIS 0.01 per share of the Company (the “Ordinary Shares”);
provided, however, that in no event shall the Company issue or sell through the Designated Agent such number or dollar amount
of Placement Shares that would (a) exceed the number or dollar amount of Ordinary Shares registered on the effective Registration Statement
(as defined below) pursuant to which the offering is being made, (b) exceed the number of authorized but unissued Ordinary Shares (less
Ordinary Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from
the Company’s capital stock), (c) exceed the number or dollar amount of Ordinary Shares permitted to be sold under Form F-3 (including
General Instruction I.B.5 thereof, if applicable) or (d) exceed the number or dollar amount of Ordinary Shares for which the Company has
filed a Prospectus Supplement (as defined below) (the lesser of (a), (b), and (d), the “Maximum Amount”). Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section
1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that
the Agents shall have no obligation in connection with such compliance. The offer and sale of Placement Shares through the Designated
Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which will be declared effective
by the United States Securities and Exchange Commission (the “Commission”), although nothing in this Agreement
shall be construed as requiring the Company to use the Registration Statement to issue Ordinary Shares.
The Company has filed or will
file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”) and
the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration
statement on Form F-3, including a base prospectus, relating to certain securities, including the Placement Shares to be issued from time
to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder.
The Company has prepared a prospectus or a prospectus supplement to the base prospectus included as part of the registration statement,
which prospectus or prospectus supplement relates to the Placement Shares to be issued from time to time by the Company (the “Prospectus
Supplement”). The Company will furnish to the Agents, for use by the Agents, copies of the prospectus included as part of
such registration statement, as supplemented, by the Prospectus Supplement, relating to the Placement Shares to be issued from time to
time by the Company. The Company may file one or more additional registration statements from time to time that will contain a base prospectus
and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the Placement
Shares. Except where the context otherwise requires, such registration statement(s), including all documents filed as part thereof or
incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with
the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement
pursuant to Rule 430B of the Securities Act Regulations, is herein called the “Registration Statement.”
The base prospectus or base prospectuses, including all documents incorporated therein by reference, included in the Registration Statement,
as it may be supplemented, if necessary, by the Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus
Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations,
together with any then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.”
Any reference herein to the
Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include
the documents, if any, incorporated by reference therein (the “Incorporated Documents”), including, unless the
context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms
“amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement,
the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange
Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus or
such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all references
to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy
filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive Data
Electronic Application system when used by the Commission (collectively, “EDGAR”).
2. Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it will
notify the Designated Agent by email notice (or other method mutually agreed to by the parties) of the number of Placement Shares to be
issued, the time period during which sales are requested to be made, any limitation on the number of Placement Shares that may be sold
in any one day and any minimum price below which sales may not be made (a “Placement Notice”), the form of which
is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth on
Schedule 3 (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each
of the individuals from the Designated Agent set forth on Schedule 3, as such Schedule 3 may be amended from time to time.
The Placement Notice shall be effective unless and until (i) the Designated Agent declines to accept the terms contained therein
for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares thereunder have been sold, (iii) the
Company suspends or terminates the Placement Notice or (iv) this Agreement has been terminated under the provisions of Section
13. The amount of any discount, commission or other compensation to be paid by the Company to the Designated Agent in connection with
the sale of the Placement Shares shall be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged
and agreed that neither the Company nor the Agents will have any obligation whatsoever with respect to a Placement or any Placement Shares
unless and until the Company delivers a Placement Notice to the Designated Agent and the Designated Agent does not decline (and the Company
does not suspend or terminate in accordance with the terms of this Agreement) such Placement Notice pursuant to the terms set forth above,
and then only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement and the terms
of a Placement Notice, the terms of the Placement Notice will control.
3. Sales Through One Designated
Agent. The Company agrees that any offer to sell Placement Shares, any solicitation of an offer to buy Placement Shares, or any sales
of Placement Shares hereunder shall only be effected by or through an Agent, and only a single Agent, on any single given day and the
Company shall in no event request that more than one Agent offer or sell Placement Shares on the same day.
4. Sale
of Placement Shares by the Designated Agent. Subject to the provisions of Section 6(a), the Designated Agent, for the period
specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable state and federal laws, rules and regulations and the rules of the Nasdaq Global Market (the “Exchange”),
to sell the Placement Shares up to the amount specified in, and otherwise in accordance with, the terms of such Placement Notice. The
Designated Agent will provide written confirmation to the Company and the other Agent no later than the opening of the Trading Day (as
defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number
of Placement Shares sold on such day, the compensation payable by the Company to the Designated Agent pursuant to Section 2 with
respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the
Agent (as set forth in Section 6(b)) from the gross proceeds that it receives from such sales. Subject to the terms of the Placement
Notice, the Designated Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offering”
as defined in Rule 415(a)(4) of the Securities Act Regulations, including sales made directly on or through the Exchange or any other
existing trading market for the Ordinary Shares, in negotiated transactions at market prices prevailing at the time of sale or at prices
related to such prevailing market prices and/or any other method permitted by law. “Trading Day” means any day
on which the Ordinary Shares are traded on the Exchange.
5. Suspension
of Sales. The Company or the Designated Agent may, upon notice to the other party in writing (including by email correspondence to
each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend
any sale of Placement Shares (a “Suspension”); provided, however, that such Suspension shall not
affect or impair any party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice.
While a Suspension is in effect, any obligation under Sections 8(l), 8(m), and 8(n) with respect to the delivery
of certificates, opinions, or comfort letters to the Agents, shall be waived. Each of the parties agrees that no such notice under this
Section 5 shall be effective against any other party unless it is made to one of the individuals named on Schedule 3 hereto,
as such Schedule may be amended from time to time. Notwithstanding any other provision of this Agreement, during any period in which the
Company is in possession of material non-public information, the Company and the Agents agree that (i) no sale of Placement Shares will
take place, (ii) the Company shall not request the sale of any Placement Shares, and (iii) the Agents shall not be obligated to sell or
offer to sell any Placement Shares.
6. Sale
and Delivery to the Designated Agent; Settlement.
(a) Sale
of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the Designated Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement
Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Designated
Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading
and sales practices and applicable law and regulations to sell such Placement Shares up to the amount specified, and otherwise in accordance
with the terms of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Designated Agent
will be successful in selling Placement Shares, (ii) the Designated Agent will incur no liability or obligation to the Company or any
other person or entity if it does not sell Placement Shares for any reason other than a failure by the Designated Agent to use its commercially
reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares
as required under this Agreement and (iii) the Designated Agent shall be under no obligation to purchase Placement Shares on a principal
basis pursuant to this Agreement, except as otherwise agreed by the Designated Agent and the Company.
(b) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the first (1st) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on
which such sales are made (each, a “Settlement Date”). The Designated Agent shall notify the Company of each
sale of Placement Shares no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales
of Placement Shares hereunder. The amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement
Shares sold (the “Net Proceeds”) will be equal to the aggregate sales price received by the Agents, after deduction
for (i) the Agents’ commission, discount or other compensation for such sales payable by the Company pursuant to Section 2
hereof, and (ii) any transaction fees imposed by any Governmental Authority (as defined below) in respect of such sales.
(c) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer
the Placement Shares being sold by crediting the Designated Agent’s or its designee’s account (provided the Designated Agent
shall have given the Company and the other Agent written notice of such designee at least one Trading Day prior to the Settlement Date)
at The Depository Trust Company through its Deposit and Withdrawal at Custodian system or by such other means of delivery as may be mutually
agreed upon by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form.
On each Settlement Date, the Designated Agent will deliver the related Net Proceeds in same day funds to an account designated by the
Company on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults
in its obligation to deliver Placement Shares on a Settlement Date, the Company agrees that in addition to and in no way limiting the
rights and obligations set forth in Section 11(a) hereto, it will (i) hold the Designated Agent harmless against any loss, claim,
damage, or expense (including reasonable and documented legal fees and expenses), as incurred, arising out of or in connection with such
default by the Company or its transfer agent (if applicable) and (ii) pay to the Designated Agent any commission, or other compensation
to which it would otherwise have been entitled absent such default.
(d) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after
giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of Placement Shares sold pursuant to this Agreement
would exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum Amount and (B) the
amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, a duly authorized
committee thereof or a duly authorized executive committee, and notified to the Agents in writing. Under no circumstances shall the Company
cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the minimum price authorized
from time to time by the Company’s board of directors, a duly authorized committee thereof or a duly authorized executive committee.
Further, under no circumstances shall the Company cause or permit the aggregate offering amount of Placement Shares sold pursuant to this
Agreement to exceed the Maximum Amount.
7. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with the Agents that as of the date of this Agreement
and as of each Applicable Time (as defined below):
(a) Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements for and comply with
the applicable conditions set forth in Form F-3 (including General Instructions I.A and I.B) under the Securities Act. The Registration
Statement has been or will be filed with the Commission and has been declared effective by the Commission under the Securities Act prior
to the issuance of any Placement Notices by the Company. As of each Applicable Time, the Registration Statement is effective. The Prospectus
Supplement will name the Agents as the agents in the section entitled “Plan of Distribution.” The Company has not received,
and has no notice of, any order of the Commission preventing or suspending the use of the Registration Statement, or threatening or instituting
proceedings for that purpose. The Registration Statement and the offer and sale of Placement Shares as contemplated hereby meet the requirements
of Rule 415 under the Securities Act and comply in all material respects with said Rule. Any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration
Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and any such amendments or supplements
and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement have
been delivered, or are available through EDGAR, to the Agents and its counsel. The Company has not distributed and, prior to the later
to occur of each Settlement Date and completion of the distribution of the Placement Shares, will not distribute any offering material
in connection with the offering or sale of the Placement Shares other than the Registration Statement and the Prospectus and any Issuer
Free Writing Prospectus (as defined below) to which the Agents have consented. The Ordinary Shares are registered pursuant to Section
12(b) of the Exchange Act and are currently listed on the Exchange under the trading symbol “NNOX.” The Company has taken
no action designed to, or likely to have the effect of, terminating the registration of the Ordinary Shares under the Exchange Act, delisting
the Ordinary Shares from the Exchange, nor has the Company received any notification that the Commission or the Exchange is contemplating
terminating such registration or listing. To the Company’s knowledge (following due inquiry), it is in compliance with all applicable
listing requirements of the Exchange.
(b) No
Misstatement or Omission. The Registration Statement, when it became or becomes effective, and the Prospectus, and any amendment or
supplement thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with
the requirements of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will
conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes effective,
did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus and any amendment and supplement thereto, on the date thereof
and at each Applicable Time (as defined below), did not or will not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The
documents incorporated by reference in the Prospectus or any Prospectus Supplement did not, and any further documents filed and incorporated
by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material
fact required to be stated in such document or necessary to make the statements in such document, in light of the circumstances under
which they were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance
upon, and in conformity with, information furnished to the Company by the Agents in writing specifically for use in the preparation thereof,
it being understood and agreed that the only such information furnished by the Agents to the Company consists of “Agents’
Information” as defined below.
(c) Conformity
with the Securities Act and Exchange Act. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any amendment
or supplement thereto, and the documents incorporated by reference in the Registration Statement, the Prospectus or any amendment or supplement
thereto, when such documents were or are filed with the Commission under the Securities Act or the Exchange Act or became or become effective
under the Securities Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities
Act and the Exchange Act, as applicable.
(d) Financial
Information. The financial statements (including the related notes thereto) of the Company and its consolidated subsidiaries included
or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the applicable requirements
of the Securities Act and the Exchange Act, as applicable, and present fairly in all material respects the financial position of the Company
and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for
the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles in the
United States (“GAAP”) applied on a consistent basis throughout the periods covered thereby; and the other financial
information included or incorporated by reference in the Registration Statement and the Prospectus has been derived from the accounting
records of the Company and its consolidated subsidiaries and presents fairly in all material respects the information shown thereby; all
disclosures included or incorporated by reference in the Registration Statement and the Prospectus regarding “non-GAAP financial
measures” (as such term is defined by the rules and regulations of Commission) comply with Regulation G of the Exchange Act and
Item 10 of Regulation S-K of the Securities Act, to the extent applicable; and the pro forma financial information and the related notes
thereto included or incorporated by reference in the Registration Statement and the Prospectus have been prepared in accordance with the
applicable requirements of the Securities Act and the Exchange Act, as applicable, and the assumptions underlying such pro forma financial
information are reasonable and are set forth in the Registration Statement and the Prospectus.
(e) Conformity
with EDGAR Filing. The Prospectus delivered to the Agents for use in connection with the sale of the Placement Shares pursuant to
this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via EDGAR, except
to the extent permitted by Regulation S-T.
(f) Organization.
The Company and each of its subsidiaries have been duly organized and are validly existing and in good standing under the laws of their
respective jurisdictions of organization (to the extent such concept is applicable in such jurisdiction), are duly qualified to do business
and are in good standing in each jurisdiction (to the extent such concept is applicable in such jurisdiction) in which their respective
ownership or lease of property or the conduct of their respective businesses as currently conducted requires such qualification, and have
all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or in good standing or have such power or authority would not reasonably be expected, individually
or in the aggregate, to have a material adverse effect on the business, properties, management, financial position, shareholders’
equity, results of operations or prospects of the Company and its subsidiaries taken as a whole or would materially and adversely affect
the ability of the Company to perform its obligations under this Agreement (a “Material Adverse Effect”). The
Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed
in Exhibit 8.1 to the Company’s most recent Annual Report on Form 20-F. The Company has not been designated as a “breaching
company” (within the meaning of the Israeli Companies Law, 5759-1999, (including the rules and regulations promulgated thereunder,
the “Companies Law”)) by the Registrar of Companies of the State of Israel. The amended and restated articles
of association of the Company comply with the requirements of applicable Israeli law and are in full force and effect.
(g) Restrictions
on Subsidiary Payments to the Company. No subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement
or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution
on such subsidiary’s share capital or similar ownership interest, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the
Company.
(h) No
Violation or Default. Neither the Company nor any of its subsidiaries is (i) in violation of its articles of association, charter
or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any property or asset of the Company or any of its subsidiaries is
subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental
or regulatory authority having jurisdiction over the Company or any of its subsidiaries except, in the case of clauses (ii) and (iii)
above, for any such default or violation that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect.
(i) No
Material Adverse Change. Since the date of the most recent financial statements of the Company included or incorporated by reference
in the Registration Statement and the Prospectus, (i) there has not been any change in the share capital of the Company (other than the
grant of options and the issuance of Ordinary Shares upon exercise of options and warrants and settlement of restricted share units (“RSUs”)
described as outstanding in, and the grant of options and awards under existing equity incentive plans described in, and the issuance
of Ordinary Shares in contemplation of earn out periods under certain agreements of the Company described in, the Registration Statement
and the Prospectus), any material change in short-term debt or long-term debt of the Company or any of its subsidiaries, or any dividend
or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of share capital, or any material
adverse change, or any development that could reasonably be expected to result in a material adverse change in or affecting the business,
properties, management, financial position, shareholders’ equity, results of operations or prospects of the Company and its subsidiaries
taken as a whole; (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement (whether or not in
the ordinary course of business) that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation,
direct or contingent, that is material, to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of
its subsidiaries has sustained any loss or interference with its business that is material to the Company and its subsidiaries taken as
a whole and that is from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance
or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case as otherwise
disclosed in the Registration Statement and the Prospectus.
(j) Capitalization.
The Company has an authorized capitalization as set forth in the Registration Statement and the Prospectus under the heading “Capitalization.”
All of the outstanding shares of the Company have been duly authorized and validly issued, are fully paid and non-assessable and are not
subject to any pre-emptive or similar rights and were issued in compliance with all applicable laws, including the Companies Law and the
Israeli Securities Law, 5728-1968, as amended and the regulations promulgated thereunder (the “Israeli Securities Law”).
Except as described in or expressly contemplated by the Registration Statement and the Prospectus, there are no outstanding rights (including,
without limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any shares
or other equity interest in the Company or any of its subsidiaries, or any contract, commitment, agreement, understanding or arrangement
of any kind relating to the issuance of any share capital of the Company or any such subsidiary, any such convertible or exchangeable
securities or any such rights, warrants or options; the share capital of the Company conforms in all material respects to the description
thereof contained in the Registration Statement and the Prospectus; and all the outstanding shares or other equity interests of each subsidiary
owned, directly or indirectly, by the Company have been duly authorized and validly issued, are fully paid and non-assessable and are
owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting
or transfer or any other claim of any third party.
(k) Directors.
All of the directors of the Company have been duly appointed in compliance with the Companies Law and the amended and restated articles
of association of the Company and any other organizational documents of the Company.
(l) No
Registration Rights. Except as disclosed in the Registration Statement, the Prospectus, no person has the right to require the Company
or any of its subsidiaries to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement
with the Commission or the issuance and sale of the Placement Shares.
(m) The
Ordinary Shares. The Placement Shares to be issued and sold by the Company hereunder have been duly authorized by the Company and,
when issued and delivered and paid for as provided herein, will be duly and validly issued, will be fully paid and nonassessable and will
conform in all material respects to the descriptions thereof in the Registration Statement and the Prospectus; and the issuance of the
Placement Shares is not subject to any preemptive or similar rights, or otherwise such rights were waived or expired as of prior to such
issuance.
(n)Authorization; The Company has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and
all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation
by it of the transactions contemplated hereby has been duly and validly taken.
(o) No
Conflicts The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Placement Shares
by the Company and the consummation of the transactions contemplated by this Agreement and the Prospectus will not (i) conflict with or
result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the termination, modification
or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property, right or asset of the
Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any
property, right or asset of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the articles
of association, charter or by-laws or similar organizational documents of the Company or any of its subsidiaries or (iii) result in the
violation of any law or statute applicable to the Company or any of its subsidiaries or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority having jurisdiction over the Company or any of its subsidiaries, except, in
the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(p) Authority.
The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement. All
corporate approvals on the part of the Company, including, to the extent applicable, under Chapter 5 of Part VI of the Companies Law,
for the execution and delivery by the Company of this Agreement, the offer, issuance and sale of the Placement Shares and the performance
of the Company’s obligations hereunder have been obtained. This Agreement has been duly authorized, executed and delivered by the
Company. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental
or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement, the issuance and sale
of the Placement Shares and the consummation of the transactions contemplated by this Agreement, except for (i) the registration of the
Placement Shares under the Securities Act, (ii) such consents, approvals, authorizations, orders and registrations or qualifications as
have been obtained or made prior to the date of this Agreement and remain in full force and effect, and (iii) such consents, approvals,
authorizations, orders and registrations or qualifications as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”)
and under applicable state securities laws in connection with the purchase and distribution of the Placement Shares by the Designated
Agent.
(q) Absence
of Proceedings. Except as described in the Registration Statement and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings (“Actions”) pending
to which the Company or any of its subsidiaries is or may reasonably be expected to become a party or to which any property of the Company
or any of its subsidiaries is or may reasonably be expected to become the subject that, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could reasonably be expected to have a Material Adverse Effect; to the knowledge
of the Company, no such Actions are threatened or contemplated by any governmental or regulatory authority or threatened by others; and
(i) there are no current or pending Actions that are required under the Securities Act to be described in the Registration Statement or
the Prospectus that are not so described in the Registration Statement and the Prospectus and (ii) there are no statutes, regulations
or contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described
in the Registration Statement or the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration
Statement and the Prospectus.
(r) Regulatory
Filings. Neither the Company nor any of its subsidiaries has failed to file with the applicable governmental or regulatory authority,
the Israel Securities Authority or any foreign, federal, state, provincial or local governmental authority, any required filing, declaration,
listing, registration, report or submission, excluding any such filing, declaration, listing, registration, report or submission to the
U.S. Food and Drug Administration (“FDA”) or similar authority in any other jurisdiction, except for such failures
that could not, individually or in the aggregate, have a Material Adverse Effect. All such filings, declarations, listings, registrations,
reports or submissions were in compliance with applicable laws when filed and no deficiencies have been asserted by any applicable regulatory
authority with respect to any such filings, declarations, listings, registrations, reports or submissions, except for any deficiencies
that could not, individually or in the aggregate, have a Material Adverse Effect.
(s) Compliance
with Health Care Laws. The Company and its subsidiaries are, and during the last three years have been, in compliance, and have taken
any required and necessary actions to comply, with all Health Care Laws, except where noncompliance would not singly or in the aggregate
reasonably be expected to result in a Material Adverse Effect. For purposes of this Agreement, “Health Care Laws” means all
health care laws applicable to the Company or any of its subsidiaries, including, but not limited to: the Federal Food, Drug, and Cosmetic
Act, the U.S. Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a), the
U.S. Physician Payment Sunshine Act (42 U.S.C. § 1320a-7h), the U.S. Civil False Claims Act (31 U.S.C. Section 3729 et seq.), the
criminal False Claims Act (42 U.S.C. § 1320a-7b(a)), all criminal laws relating to health care fraud and abuse, including but not
limited to 18 U.S.C. Sections 286 and 287, and the health care fraud criminal provisions under the U.S. Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”) (42 U.S.C. Section 1320d et seq.), the exclusion laws (42 U.S.C. §
1320a-7), HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.),
Medicare (Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social Security Act), and any and all other similar state,
local, federal or foreign (including Israeli) health care laws and the regulations promulgated pursuant to such laws, including, without
limitation, the FDA’s current good manufacturing practice regulations at 21 CFR Part 820 and all other laws and regulations applicable
to ownership, testing, development, manufacture, packaging, processing, use, distribution, storage, import, export or disposal of the
Company’s or any of its subsidiaries’ products, each as amended from time to time. Neither the Company nor any of its subsidiaries
has received any Form 483, notice of adverse finding, warning letter, untitled letter or other correspondence or notice from the FDA,
or written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any court
or arbitrator or governmental or regulatory authority alleging a material violation of any Health Care Laws, and, to the Company’s
knowledge, no such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action is threatened. Neither
the Company nor any of its subsidiaries is a party to or has ongoing reporting obligations pursuant to any corporate integrity agreements,
deferred prosecution agreements, monitoring agreements, consent decrees, settlement orders, plans of correction or similar agreements
with or imposed by any governmental or regulatory authority. Additionally, neither the Company nor any of its subsidiaries, nor, to the
knowledge of the Company, any of its or its subsidiaries’ employees, officers or directors has been excluded, suspended or debarred
from participation in any U.S. federal health care program or human research study or clinical trial or, to the knowledge of the Company,
is subject to an inquiry, investigation, proceeding, or other similar action by any governmental authority that could reasonably be expected
to result in debarment, suspension, or exclusion.
(t) Intellectual
Property. (i) The Company and its subsidiaries own (free and clear of all liens, security interests or encumbrances, other than licenses
or other grants of rights to use Intellectual Property), or have a license to, all patents, patent applications, patent rights, trademarks,
service marks, trade names, trademark registrations, service mark registrations, domain names and other source indicators, copyrights
and copyrightable works, know-how, trade secrets, systems, procedures, proprietary or confidential information and all other worldwide
intellectual property, industrial property and proprietary rights (collectively, “Intellectual Property”) currently
used in the conduct of their respective businesses (except where such failure to own or possess such rights would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect) and all issued or registered Intellectual Property that is owned
by the Company or its subsidiaries is subsisting, and to the knowledge of the Company, valid and enforceable (except where such failure
to be subsisting, valid or enforceable would not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect); (ii) the Company’s and its subsidiaries’ conduct of their respective businesses does not infringe, misappropriate
or otherwise violate any Intellectual Property or contractual rights of any person, except as would not be reasonably expected, individually,
or in the aggregate, to have a Material Adverse Effect; (iii) the Company and its subsidiaries have not received any written notice of
any claim relating to Intellectual Property, which claim, if determined adversely to the Company or its subsidiaries, would reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect; (iv) to the knowledge of the Company, no Intellectual
Property that is owned by the Company or its subsidiaries and material to the conduct of the Company’s or its subsidiaries’
respective businesses is being infringed, misappropriated or otherwise violated by any person; (v) except as described in the Registration
Statement and the Prospectus, there are no Actions pending, or to the knowledge of the Company, threatened against the Company or its
subsidiaries relating to Intellectual Property that, if determined adversely to the Company or its subsidiaries, would reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; (vi) the Company and its subsidiaries have complied in all material
respects with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company or its subsidiaries,
as applicable, except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and, to
the Company’s knowledge, all such agreements are in full force and effect; and (vii) the Company and its subsidiaries take reasonable
steps (x) to protect, maintain and safeguard trade secrets and confidential information included in their Intellectual Property and (y)
to require all of their current employees and contractors (A) with access to trade secrets and confidential information to execute non-disclosure
and confidentiality agreements and/or provisions with the Company or its subsidiaries, as applicable, and (B) who have been involved in
the creation, invention or development of material Intellectual Property for or on behalf of the Company or its subsidiaries to assign
in writing to the Company or its subsidiaries, as applicable, all of their rights therein.
(u) Clinical
Trials. The research studies and trials conducted by, on behalf of, or sponsored by, the Company that are described in the Registration
Statement or the Prospectus were and, if still pending, are being, conducted in all material respects in accordance with all applicable
Health Care Laws; the Company has no knowledge of any research studies or clinical trials not described in the Registration Statement
and the Prospectus the results of which reasonably call into question in any material respect the results of the research studies and
clinical trials described in the Registration Statement or Prospectus; and the Company has not received any written notices or correspondence
from the FDA or any other foreign (including Israeli), state or local governmental body exercising comparable authority or any institutional
review board or comparable authority requiring or threatening the premature termination, suspension, material modification or clinical
hold of any research studies or trials conducted by or on behalf of, or sponsored by, the Company that are described in the Registration
Statement or the Prospectus, and, to the Company’s knowledge, there are no reasonable grounds for the same.
(v) Market
Capitalization. At the time the Registration Statement was or will be originally declared effective, and at the time the Company’s
most recent Annual Report on Form 20-F was filed with the Commission, the Company met or will meet the then applicable requirements for
the use of Form F-3 under the Securities Act, including, but not limited to, General Instruction I.B.1/I.B.5 of Form F-3. The aggregate
market value of the outstanding voting and non-voting common equity (as defined in Securities Act Rule 405) of the Company held by
persons other than affiliates of the Company (pursuant to Securities Act Rule 144, those that directly, or indirectly through one or more
intermediaries, control, or are controlled by, or are under common control with, the Company) (the “Non-Affiliate Shares”),
was equal to or greater than $75.0 million (calculated by multiplying (x) the highest price at which the common equity of the Company
closed on the Exchange within 60 days of the date of this Agreement times (y) the number of Non-Affiliate Shares). The Company is not
a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar months previously
and if it has been a shell company at any time previously, has filed current Form 10 information (as defined in Instruction I.B.5 of Form
F-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a shell company.
(w) No
Material Defaults. Neither the Company nor any of the subsidiaries has defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would have a Material Adverse Effect.
The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its last Annual Report on
Form 20-F, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred shares or (ii) has
defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually
or in the aggregate, would have a Material Adverse Effect.
(x) Certain
Market Activities. Neither the Company nor any of its subsidiaries or affiliates has taken, directly or indirectly, any action designed
to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Placement Shares.
In addition, neither the Company nor any of its subsidiaries has engaged in any form of solicitation, advertising or other action constituting
an offer or a sale under the Israeli Securities Law in connection with the transactions contemplated hereby which would require the Company
to publish a prospectus in the State of Israel under the laws of the State of Israel, or has taken any other action which would violate
the Israeli Securities Law.
(y) No
Reliance. The Company has not relied upon the Agents or legal counsel for the Agents for any legal, tax or accounting advice in connection
with the offering and sale of the Placement Shares.
(z) No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries, on
the one hand, and the directors, officers, shareholders, customers, suppliers or other affiliates of the Company or any of its subsidiaries,
on the other, that is required by the Securities Act to be described in each of the Registration Statement and the Prospectus and that
is not so described in such documents.
(aa) Material Tax Considerations.
The statements set forth in the Preliminary Prospectus and the Prospectus under the caption “Material Tax Considerations,”
insofar as they purport to describe the provisions of the laws and documents referred to therein, fairly summarize the matters described
therein in all material respects as of the date hereof.
(bb) Taxes. (i) The
Company and its subsidiaries have paid all national, regional, local and other taxes and assessments (including any interest and penalties
due and payable thereon) required to be paid, and timely filed all income and other tax returns required to be filed through the date
hereof, except to the extent that the failure to so pay or file would not reasonably be expected to result in a Material Adverse Effect;
(ii) except as otherwise disclosed in each of the Registration Statement and the Prospectus, there is no tax deficiency that has been,
or would reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of their respective properties,
income or assets, except for any tax deficiency being contested in good faith (provided that appropriate reserves have been established
therefor in accordance with GAAP) or which would not reasonably be expected to result in a Material Adverse Effect, (iii) each of the
Company and its subsidiaries are and have at all times been resident for tax purposes in their jurisdiction of incorporation and are not
and have not been treated as resident in any other jurisdiction for any tax purpose (including any double taxation arrangement) and no
written claim has been made by any governmental authority that the Company or its subsidiaries are or may be subject to tax or required
to file a tax return in a jurisdiction where it does not file tax returns, and (iv) assuming that an Agent is not otherwise subject to
taxation in Israel due to Israeli tax residence or the existence of a permanent establishment of such Agent in Israel or as a result of
any present or former connection (other than any resulting solely from the transactions contemplated by this Agreement), then no capital
gains, income, withholding or other taxes are payable by or on behalf of such Agent to the State of Israel or to any political subdivision
or authority thereof or therein in connection with the issuance, sale and delivery of the Placement Shares by the Company, and the execution
and delivery of this Agreement or any other document to be furnished hereunder.
(cc) Stamp Taxes.
Except as described in the Prospectus, no transaction, documentary, stamp, issue, transfer, registration or other similar taxes or duties
(“Stamp Taxes”) are payable by or on behalf of the Agents in Israel, Japan, Korea or the United States or any
political subdivision or taxing authority thereof or therein on or in connection with (i) the issuance, sale or placement of the Placement
Shares to be sold by the Company in the manner contemplated by this Agreement, (ii) the purchase by the Designated Agent of the Placement
Shares in the manner contemplated by this Agreement, (iii) the resale and delivery by the Designated Agent of the Placement Shares in
the manner contemplated by this Agreement, (iv) the holding or transfer of the Placement Shares by the Designated Agent or (v) the execution
and delivery of this Agreement and the consummation of any of the other transactions contemplated hereby.
(dd) No Approvals Required
and No Distribution Taxes. Except as disclosed in the Registration Statement and the Prospectus, (i) no approvals are currently required
in Israel, Japan or Korea in order for (x) the Company to pay dividends or other distributions declared by the Company to the holders
of Shares or (y) the subsidiaries of the Company to pay dividends or other distributions declared by such subsidiary to the Company; and
(ii) under current laws and regulations of Israel, Japan or Korea and any political subdivision thereof, any amounts payable with respect
to the Placement Shares upon liquidation of the Company or upon redemption thereof and dividends and other distributions declared and
payable on the share capital of the Company may be paid by the Company in United States dollars and freely transferred out of Israel,
Japan or Korea, and no such payments made to the holders thereof or therein who are non-residents of Israel, Japan or Korea, as applicable,
will be subject to income, withholding or other taxes under laws and regulations of Israel, Japan or Korea or any political subdivision
or taxing authority thereof or therein and will otherwise be free and clear of any other tax, duty, withholding or deduction in Israel,
Japan or Korea or any political subdivision or taxing authority thereof or therein and without the necessity of obtaining any governmental
authorization in Israel, Japan or Korea or any political subdivision or taxing authority thereof or therein.
(ee) Licenses and Permits.
The Company and its subsidiaries possess all licenses, sub-licenses, certificates, clearances, exemptions, permits, registrations and
other authorizations (collectively, “Governmental Licenses”) issued by, and have made all declarations and filings
with, the appropriate federal, state, local or foreign (including Israeli) governmental or regulatory authorities that are necessary for
the ownership or lease of their respective properties or the conduct of their respective businesses as described in each of the Registration
Statement and the Prospectus, except where the failure to possess or make the same would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect; and except as described in each of the Registration Statement and the Prospectus, neither
the Company nor any of its subsidiaries has received notice of any revocation or modification of any such license, sub-license, certificate,
permit, registration or authorization or has any reason to believe that any such license, sub-license, certificate, permit, registration
or authorization will not be renewed in the ordinary course, except where such revocation or modification or the failure to renew the
same would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(ff) Israeli Tax Benefits.
Except for the rulings dated February 8, 2022 and August 30, 2022 received by the Company from the Israel Tax Authority in connection
with the acquisition of Nano-X AI Ltd. (formerly known as Zebra Medical Vision Ltd.) according to Section 104H of the Israeli Income Tax
Ordinance (New Version), 5721-1961 (the “Ordinance”) and Section 102 and 3(i) of the Ordinance, respectively
(the “Nano-X AI Rulings”), the Company has not received or been granted any tax rulings by any Israeli governmental
or regulatory authority, including with respect to any “Approved Enterprise,” “Benefited Enterprise,” “Preferred
Enterprise,” “Preferred Technological Enterprise” or “Special Preferred Technological Enterprise” status
or benefits (collectively, “Tax Incentive Program”), and by Israeli laws and regulations has not made any claims
for tax benefits relating to any Tax Incentive Program. The Company and its subsidiaries have complied and are in compliance with all
terms and conditions of the Nano-X AI Rulings, except where the failure to be in compliance would not reasonably be expected to have a
Material Adverse Effect.
(gg) Ownership of Assets.
The Company and its subsidiaries have good and marketable title to, or have valid rights to lease or otherwise use, all items of real
and personal property that are material to the respective businesses of the Company and its subsidiaries, in each case free and clear
of all liens, encumbrances, claims and defects and imperfections of title except those that (i) do not materially interfere with the use
made and proposed to be made of such property by the Company and its subsidiaries or (ii) would not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.
(hh) Compliance with Environmental
Laws. (i) The Company and its subsidiaries (x) are in compliance with all, and have not violated any, applicable federal, state, local
and foreign (including Israeli) laws (including common law), rules, regulations, requirements, decisions, judgments, decrees, orders and
other legally enforceable requirements relating to pollution or the protection of human health or safety, the environment, natural resources,
hazardous or toxic substances or wastes, including biohazardous and medical waste, pollutants or contaminants (collectively, “Environmental
Laws”); (y) have received and are in compliance with all, and have not violated any, permits, licenses, certificates or
other authorizations or approvals required of them under any Environmental Laws to conduct their respective businesses; and (z) have not
received notice of any actual or potential liability or obligation under or relating to, or any actual or potential violation of, any
Environmental Laws, including for the investigation or remediation of any use, disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, or relating to human exposure to hazardous or toxic substances or wastes and have no knowledge of
any event or condition that would reasonably be expected to result in any such notice, and (ii) there are no costs or liabilities associated
with Environmental Laws of or relating to the Company or its subsidiaries, except in the case of each of (i) and (ii) above, for any such
matter as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described
in the Prospectus, (x) there is no proceeding that is pending, or to the knowledge of the Company, contemplated, against the Company or
any of its subsidiaries under any Environmental Laws in which a governmental or regulatory authority is also a party, other than such
proceeding regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) the Company and its
subsidiaries are not aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under
Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected
to have a material adverse effect on the capital expenditures, earnings or competitive position of the Company and its subsidiaries, and
(z) none of the Company or its subsidiaries anticipates material capital expenditures relating to any Environmental Laws.
(ii) Hazardous
Materials. There has been no storage, generation, transportation, use, handling, treatment, Release or threat of Release of Hazardous
Materials by, relating to or caused by the Company or any of its subsidiaries (or, to the knowledge of the Company and its subsidiaries,
any other entity (including any predecessor) for whose acts or omissions the Company or any of its subsidiaries is or could reasonably
be expected to be liable) at, on, under or from any property or facility now or previously owned, operated or leased by the Company or
any of its subsidiaries, or at, on, under or from any other property or facility, in violation of any Environmental Laws or in a manner
or amount or to a location that could reasonably be expected to result in any liability under any Environmental Law, except for any violation
or liability which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Hazardous
Materials” means any material, chemical, substance, waste (including biohazardous and medical waste), pollutant, contaminant, compound,
mixture, or constituent thereof, in any form or amount, including petroleum (including crude oil or any fraction thereof) and petroleum
products, natural gas liquids, asbestos and asbestos containing materials, naturally occurring radioactive materials, brine, and drilling
mud, regulated or which can give rise to liability under any Environmental Law. “Release” means any spilling, leaking, seepage,
pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, or migrating
in, into or through the environment, or in, into from or through any building or structure.
(jj) Internal Controls.
The Company and its subsidiaries taken as a whole maintain systems of “internal control over financial reporting” (as defined
in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act that are applicable to the Company and have
been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing
similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP. The Company and its subsidiaries taken as a whole maintain internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and
to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization;
(iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences; and (v) interactive data in eXtensible Business Reporting Language included or incorporated by reference
in the Registration Statement and the Prospectus fairly presents the information called for in all material respects and is prepared in
accordance with the Commission’s rules and guidelines applicable thereto in all material respects. Based on the Company’s
most recent evaluation of its internal controls over financial reporting pursuant to Rule 13a-15(c) of the Exchange Act, except as disclosed
in the Registration Statement and the Prospectus, there are no material weaknesses in the Company’s internal controls. The Company’s
auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material
weaknesses in the design or operation of internal controls over financial reporting which have adversely affected or are reasonably likely
to adversely affect the Company’s ability to record, process, summarize and report financial information; and (ii) any fraud, whether
or not material, that involves management or other employees who have a significant role in the Company’s internal controls over
financial reporting.
(kk) Independent Accountants.
Kesselman & Kesselman, a member of PricewaterhouseCoopers International Limited, who has certified certain financial statements of
the Company and its subsidiaries, is an independent registered public accounting firm with respect to the Company and its subsidiaries
within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States)
and as required by the Securities Act.
(ll) Disclosure Controls.
The Company and its subsidiaries maintain “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange
Act) that comply with the applicable requirements of the Exchange Act and that have been designed to ensure that information required
to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported
within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that
such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding
required disclosure.
(mm) Sarbanes-Oxley.
Except as otherwise disclosed in the Company’s Form 20-F for the year ended December 31, 2022, there is no failure on the part of
the Company or any of the Company’s directors or officers, in their capacities as such, to comply with any applicable provision
of the Sarbanes-Oxley Act of 2002, as amended and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(nn) No Brokers or Finders.
Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against the Company
or any of its subsidiaries or the Agents for a brokerage commission, finder’s fee or like payment in connection with the offering
and sale of the Placement Shares.
(oo) Labor
Matters. No labor disturbance by or dispute with employees of the Company or any of its subsidiaries exists or, to the knowledge of
the Company, is contemplated or threatened, and the Company is not aware of any existing or imminent labor disturbance by, or dispute
with, the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except as would not reasonably
be expected to have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice of cancellation
or termination with respect to any collective bargaining agreement to which it is a party. The Company and its subsidiaries are in compliance
with the labor and employment laws, collective bargaining agreements and extension orders applicable to their employees, except where
the failure to be so in compliance has not had and would not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect. All obligations of the Company to provide statutory severance pay to all of its currently engaged employees in Israel
(“Israeli Employees”) are in accordance with Section 14 of the Israeli Severance Pay Law, 5723-1963 (the
“Severance Pay Law”) and are fully funded or are accrued on the financial statements of the Company, and all
such employees have been subject to the provisions of Section 14 of the Severance Pay Law with respect to their entire salary, as
defined under the Severance Pay Law, from the date of commencement of their employment with the Company, and the Company has been in full
compliance with the requirements for a “Section 14 Arrangement” with respect to severance pay with respect to 100% of
such salary for which severance pay may be due under the Severance Pay Law; and all amounts that the Company is required by contract or
applicable law either (A) to deduct from Israeli Employees’ salaries or to transfer to such Israeli Employees’ pension
or provident, life insurance, incapacity insurance, advance study fund or other similar funds or insurance or (B) to withhold from
its Israeli Employees’ salaries and benefits and to pay to any Israeli governmental authority as required by applicable Israeli
tax law, have, in each case, been duly deducted, transferred, withheld and paid, and the Company has no outstanding obligation to make
any such deduction, transfer, withholding or payment.
(pp) Investment Company
Act. The Company is not and, after giving effect to the offering and sale of the Placement Shares and the application of the proceeds
thereof as described in the Registration Statement and the Prospectus, will not be required to register as an “investment company”
or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment Company Act”).
(qq) Anti-Bribery.
Neither the Company nor any of its subsidiaries nor any director or officer of the Company or any of its subsidiaries nor, to the knowledge
of the Company, any employee, agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries
has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity;
(ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to
any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a
public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political
party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials
in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom or any other applicable
anti-bribery or anti-corruption law, including, without limitation, Sections 291 and 291A of the Israel Penal Law, 5737-1977, and the
rules and regulations thereunder; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other
unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment
or benefit. The Company and its subsidiaries have instituted, maintained and enforced, and will continue to maintain and enforce policies
and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(rr) Compliance with Anti-Money
Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the Israel Prohibition on Money Laundering Law, 5760-2000, Israel Prohibition on Money Laundering Order, 5761-2001, and the Israel
Counter-Terrorism Law, 5776-2016, all as amended, and the applicable money laundering statutes of all jurisdictions where the Company
or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines
issued, administered or enforced by any governmental or regulatory agency (collectively, the “Anti-Money Laundering Laws”)
and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(ss) Sales Agreements.
The Company is not a party to any agreement with an agent or underwriter for any other “at the market” or continuous equity
transaction.
(tt) ERISA and Employee
Benefits Matters. (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”), whether or not subject to ERISA, for which the Company or any member of its “Controlled
Group” (defined as any entity, whether or not incorporated, that is under common control with the Company within the meaning of
Section 4001(a)(14) of ERISA or any entity that would be regarded as a single employer with the Company under Section 414(b),(c),(m) or
(o) of the Code would have any liability (each, a “Plan”) has been maintained in compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (ii) no non-exempt
prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan
subject to such rules; (iii) no Plan has failed (whether or not waived), or is reasonably expected to fail, to satisfy the minimum funding
standards required by applicable law, including Section 302 of ERISA or Section 412 of the Code; (iv) no Plan is, or is reasonably expected
to be, in “at risk status” (within the meaning of Section 303(i) of ERISA) and no Plan that is a “multiemployer plan”
within the meaning of Section 4001(a)(3) of ERISA is in “endangered status” or “critical status” (within the meaning
of Sections 304 and 305 of ERISA) (v) the fair market value of the assets of each Plan required to be funded exceeds the present value
of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan); (vi) no “reportable event”
(within the meaning of Section 4043(c) of ERISA and the regulations promulgated thereunder) has occurred or is reasonably expected to
occur with respect to a Plan that is subject to such rules; (vii) each Plan that is intended to be qualified under Section 401(a) of the
Code is so qualified, and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification;
(viii) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title
IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guarantee Corporation, in the ordinary course and
without default) in respect of a Plan (including a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA);
(ix) none of the Company and its subsidiaries has received notice from a governmental or regulatory authority relating to the intention
to terminate any Plan or to appoint a trustee or similar official to administer any Plan or alleging the insolvency of any Plan, and (x)
none of the following events has occurred or is reasonably likely to occur: (A) a material increase in the aggregate amount of contributions
required to be made to all Plans by the Company or its Controlled Group affiliates in the current fiscal year of the Company and its Controlled
Group affiliates compared to the amount of such contributions made in the Company’s and its Controlled Group affiliates’ most
recently completed fiscal year; or (B) a material increase in the Company and its subsidiaries’ “accumulated post-retirement
benefit obligations” (within the meaning of Accounting Standards Codification Topic 715-60) compared to the amount of such obligations
in the Company and its subsidiaries’ most recently completed fiscal year, except in each case with respect to the events or conditions
set forth in (i) through (ix) hereof, as would not, individually or in the aggregate, have a Material Adverse Effect.
(uu) Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included in
the Registration Statement or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in
good faith.
(vv) Margin Rules.
Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company as described
in each of the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System or any other regulation of such Board of Governors.
(ww) Insurance. The
Company and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, which insurance
is in amounts and insures against such losses and risks as the Company reasonably believes are adequate to protect the Company and its
subsidiaries and their respective businesses as currently conducted; and neither the Company nor any of its subsidiaries has (i) received
notice from any insurer or agent of such insurer that material capital improvements or other expenditures are required or necessary to
be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue
its business.
(xx) No
Conflict with Sanctions Laws. Neither the Company nor any of its subsidiaries, directors, officers or employees nor, to the knowledge
of the Company, any agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries is
currently the subject or target of any sanctions administered or enforced by the U.S. government, (including, without limitation, the
Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation,
the designation as a “specially designated national” or “blocked person”) or a resident or incorporated or engaged
in a business in an “Enemy State” pursuant to the Israeli Trade with the Enemy Ordinance, 1939, the United Nations Security
Council, the European Union, His Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”),
nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of
Sanctions, including, without limitation, the Crimea Region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk
People’s Republic, Cuba, Iran, North Korea and Syria (each, a “Sanctioned Country”); and the Company will
not directly or indirectly use the proceeds of the offering of the Placement Shares hereunder, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business
with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any
activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including
any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years,
the Company and its subsidiaries and predecessors have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions
with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned
Country.
(yy) Status Under the
Securities Act. The Company is an “ineligible issuer,” and is not a well-known seasoned issuer, in each case, as defined
in Rule 405 under the Securities Act. The Company is a “foreign private issuer” as defined in Rule 405 under the Securities
Act. The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act or will pay such
fee within the time period required by such rule (without giving effect to the proviso therein) and in any event prior to the filing of
the Prospectus relating to the Placement Shares.
(zz) No Misstatement
or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and as of each Applicable
Time (as defined in Section 24 below), did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated document deemed to
be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any
Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Agents specifically
for use therein.
(aaa) Statistical Information.
Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and market-related data included
in each of the Registration Statement and the Prospectus is not based on or derived from sources that are reliable and accurate in all
material respects.
(bbb) Cybersecurity.
The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently
conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company
and its subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls, policies,
procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy
and security of all IT Systems and data, including all “Personal Data” (as defined below) and all sensitive, confidential
or regulated data (“Confidential Data”) used in connection with their businesses. “Personal Data”
means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax identification
number, driver’s license number, passport number, credit card number, bank information, or customer or account number; (ii) any
information which would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended;
(iii) “personal data” as defined by GDPR (as defined below); (iv) any information which would qualify as “protected
health information” under the Health Insurance Portability and Accountability Act of 1996, as amended by HIPAA; (v) any “personal
information” as defined by the California Consumer Privacy Act (“CCPA”); and (vi) any other piece of information
that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any data related
to an identified person’s health or sexual orientation. There have been no breaches, violations, outages or unauthorized uses of
or accesses to same, except for those that have been remedied without material cost or liability or the duty to notify any other person,
nor any incidents under internal review or investigations relating to the same. The Company and its subsidiaries are presently in material
compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental
or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems, Confidential
Data, and Personal Data and to the protection of such IT Systems, Confidential Data, and Personal Data from unauthorized use, access,
misappropriation or modification.
(ccc) Compliance with
Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable state
and federal data privacy and security laws and regulations, including without limitation HIPAA, CCPA, the Israeli Protection of Privacy
Law, 5741-1981, the Israeli Patient’s Rights Law, 5756-1996, and the European Union General Data Protection Regulation (“GDPR”)
(EU 2016/679) (collectively, the “Privacy Laws”). To ensure compliance with the Privacy Laws, the Company and
its subsidiaries have in place, comply with, and take appropriate steps to ensure compliance in all material respects with their policies
and procedures relating to data privacy and security and the collection, storage, use, processing, disclosure, handling, and analysis
of Personal Data and Confidential Data (the “Policies”). The Company has at all times made all disclosures to
users or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in
any Policy have been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any material respect. The
Company further certifies that neither it nor any subsidiary: (i) has received notice of any actual or potential liability under or relating
to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably
be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation,
or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation
or liability under any Privacy Law.
(ddd) Compliance with
Laws. The Company and each of its subsidiaries holds, and is operating in compliance in all material respects with, all franchises,
grants, authorizations, licenses, permits, easements, consents, certificates and orders of any Governmental Authority, (self-)regulatory
body or designated organization required for the conduct of its business and all such franchises, grants, authorizations, licenses, permits,
easements, consents, certifications and orders are valid and in full force and effect; and neither the Company nor any of its subsidiaries
has received notice of any revocation or modification of any such franchise, grant, authorization, license, permit, easement, consent,
certification or order or has reason to believe that any such franchise, grant, authorization, license, permit, easement, consent, certification
or order will not be renewed in the ordinary course; and the Company and each of its subsidiaries is in compliance in all material respects
with all applicable federal, state, local and foreign (including Israeli) laws, regulations, orders and decrees.
(eee) Stock Options.
With respect to the share options and other equity incentive awards (the “Stock Options”) granted pursuant to
the share-based compensation plans of the Company and its subsidiaries (the “Company Stock Plans”), (i) no Stock
Option has been granted that is intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue
Code of 1986, as amended (the “Code”), (ii) as of the date of this Agreement, each Stock Option intended to
qualify for the “capital gains track” of Section 102 of the Ordinance so qualifies (iii) each grant of a Stock Option was
duly authorized no later than the date on which the grant of such Stock Option was by its terms to be effective by all necessary corporate
action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof)
and any required shareholder approval, and the award agreement governing such grant (if any) was duly executed and delivered by each party
thereto, (iv) each such grant was made in accordance with the terms of the Company Stock Plans, the Exchange Act and all other applicable
laws and regulatory rules or requirements, including the rules of the Exchange and any other exchange on which Company securities are
traded, and (v) each such grant was properly accounted for in accordance with GAAP in the financial statements (including the related
notes) of the Company and disclosed in the Company’s filings with the Commission in accordance with the Exchange Act and all other
applicable laws. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting,
Stock Options prior to, or otherwise coordinating the grant of Stock Options with, the release or other public announcement of material
information regarding the Company or its subsidiaries or their results of operations or prospects.
(fff) eXtensible Business
Reporting Language. 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 in all material respects.
(ggg) Ratings. There
are no (and prior to each Settlement Date, will be no) debt securities, convertible securities or preferred shares issued or guaranteed
by the Company or any of its subsidiaries that are rated by a “nationally recognized statistical rating organization”, as
such term is defined in Section 3(a)(62) under the Exchange Act.
(hhh) Grants. Except
as disclosed in Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has received any funding, grants
or subsidies from or on behalf of or under the authority of the Israel Innovation Authority of the Israeli Ministry of Economy and Industry,
the Authority for Investment and Development of Industry and the Economy of the State of Israel of the Israeli Ministry of Economy and
Industry, any other governmental or regulatory agency or authority or any bi- or multi-national grant program, framework or foundation.
(iii) Valid
Choice of Law; Enforceability. The choice of laws of the State of New York as the governing law of this Agreement is a valid choice
of law under the laws of the State of Israel. The Company has the power to submit, and pursuant to Section 19 of this Agreement, has legally,
validly, effectively and irrevocably submitted, to the personal jurisdiction of the U.S. federal and New York state courts in the Borough
of Manhattan, The City of New York (each, a “New York Court”), and the Company has the power to designate, appoint
and authorize, and pursuant to Section 19 of this Agreement, has legally, validly, effectively and irrevocably designated, appointed and
authorized an agent for service of process in any action arising out of or relating to this Agreement or the transactions contemplated
hereby in any New York Court, and service of process effected on such authorized agent will be effective to confer valid personal jurisdiction
over the Company as provided in Section 19 hereof.
Any certificate signed by
an officer of the Company and delivered to the Agents or to counsel for the Agents pursuant to or in connection with this Agreement shall
be deemed to be a representation and warranty by the Company, as applicable, to the Agents as to the matters set forth therein.
8. Covenants
of the Company. The Company covenants and agrees with the Agents that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement Shares
is required to be delivered by the Agents under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act or similar rule), (i) the Company will notify the Agents promptly of the time when
any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission
and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare
and file with the Commission, promptly upon the Agents’ request, any amendments or supplements to the Registration Statement or
Prospectus that, in the Agents’ reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement
Shares by the Designated Agent (provided, however, that the failure of the Agents to make such request shall not relieve
the Company of any obligation or liability hereunder, or affect the Agents’ right to rely on the representations and warranties
made by the Company in this Agreement and provided, further, that the only remedy the Agents shall have with respect to
the failure to make such filing shall be to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the
Company will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement Shares or a security
convertible into the Placement Shares unless a copy thereof has been submitted to the Agents within a reasonable period of time before
the filing and the Agents have not objected thereto (provided, however, that the failure of the Agents to make such objection
shall not relieve the Company of any obligation or liability hereunder, or affect the Agents’ right to rely on the representations
and warranties made by the Company in this Agreement and provided, further, that the only remedy the Agents shall have with
respect to the failure by the Company to obtain such consent shall be to cease making sales under this Agreement) and the Company will
furnish to the Agents at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference
into the Registration Statement or Prospectus, except for those documents available via EDGAR; and (iv) the Company will cause each
amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b)
of the Securities Act or, in the case of any document to be incorporated by reference therein, to be filed with the Commission as required
pursuant to the Exchange Act, within the time period prescribed (the determination to file or not file any amendment or supplement with
the Commission under this Section 8(a), based on the Company’s reasonable opinion or reasonable objections, shall be made
exclusively by the Company).
(b) Notice
of Commission Stop Orders. The Company will advise the Agents, promptly after it receives notice or obtains knowledge thereof, of
the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of
the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agents promptly after it receives
any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any
Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Shares or for additional information
related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered
by the Agents under the Securities Act with respect to the offer and sale of the Placement Shares, (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act or similar rule), the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and file on or before their respective due dates all reports and
any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c),
14, 15(d) or any other provision of or under the Exchange Act. If the Company has omitted any information from the Registration Statement
pursuant to Rule 430B under the Securities Act, it will use its best efforts to comply with the provisions of and make all requisite filings
with the Commission pursuant to said Rule 430B and to notify the Agents promptly of all such filings. If during such period any event
occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or
if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act,
the Company will promptly notify the Agents to suspend the offering of Placement Shares during such period and the Company will promptly
amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission
or effect such compliance; provided, however, that the Company may delay any such amendment or supplement if, in the reasonable judgment
of the Company, it is in the interests of the Company to do so, and shall promptly provide the Agent with a written notice to that effect
setting forth with reasonable details the grounds for such judgment. Until such time as the Company shall have corrected such misstatement
or omission or effected such compliance, the Company shall not instruct the Agent to resume the offering of Placement Shares.
(d) Listing
of Placement Shares. Prior to the date of the first Placement Notice, the Company will use its reasonable best efforts to cause the
Placement Shares to be listed on the Exchange.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to the Agents and their counsel (at the expense of the Company)
copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus relating
to the Placement Shares is required to be delivered under the Securities Act (including all documents filed with the Commission during
such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and in such quantities
as the Agents may from time to time reasonably request and, at the Agents’ request, will also furnish copies of the Prospectus to
each exchange or market on which sales of the Placement Shares may be made; provided, however, that the Company shall not
be required to furnish any document (other than the Prospectus) to the Agents to the extent such document is available on EDGAR.
(f) Earning
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later than
15 months after the end of the Company’s current fiscal quarter, an earning statement covering a 12-month period that satisfies
the provisions of Section 11(a) and Rule 158 of the Securities Act. The Company’s compliance with the periodic reporting requirements
of the Exchange Act shall be deemed to satisfy the requirements of this Section 8(f).
(g) Use
of Proceeds. The Company will use the Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(h) Notice
of Other Sales. Without the prior written consent of the Agents, the Company will not, directly or indirectly, offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Ordinary Shares (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Ordinary Shares, warrants or any rights to purchase or acquire Ordinary
Shares during the period beginning on the fifth (5th) Trading Day immediately prior to the date on which any Placement Notice
is delivered to the Designated Agent hereunder and ending on the fifth (5th) Trading Day immediately following the final Settlement
Date with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended
prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination) (the “Notice
Period”); and will not directly or indirectly in any other “at the market” or continuous equity transaction
offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Ordinary Shares (other than the Placement
Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Ordinary Shares, warrants or any rights
to purchase or acquire, Ordinary Shares prior to the sixtieth (60th) day immediately following the termination of this Agreement; provided,
however, that such restrictions will not be required in connection with the Company’s issuance or sale of (i) Ordinary
Shares, options to purchase Ordinary Shares, warrants to purchase Ordinary Shares or Ordinary Shares issuable upon the exercise of options
or warrants, pursuant to any employee or director stock option, warrant or benefits plan, stock ownership plan or dividend reinvestment
plan (but not Ordinary Shares subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now
in effect or hereafter implemented, (ii) Ordinary Shares issuable upon conversion of securities or the exercise of warrants, options
or other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise in writing to the Agents,
(iii) Ordinary Shares or securities convertible into or exchangeable for Ordinary Shares as consideration for mergers, acquisitions, or
other business combinations or strategic alliances occurring after the date of this Agreement which are not issued for capital raising
purposes and (iv) Ordinary Shares or securities convertible into or exchangeable for Ordinary Shares pursuant to the Company’s registration
right obligations to selling shareholders.
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice advise the Agents promptly after it shall
have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any
opinion, certificate, letter or other document required to be provided to the Agents pursuant to this Agreement.
(j) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Agents or its representatives
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available documents
and senior corporate officers, during regular business hours and at the Company’s principal offices, as the Agents may reasonably
request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company shall disclose in (x) its Annual Report on Form 20-F and (y) any Periodic
Report on Form 6-K under which the Company furnishes its quarterly results of operations for the prior quarter, in each case to be filed
by the Company with the Commission from time to time, the number of the Placement Shares sold through the Agents under this Agreement,
and the net proceeds to the Company from the sale of the Placement Shares pursuant to this Agreement during the relevant fiscal year and
the fourth quarter of such fiscal year (in the case of an Annual Report on Form 20-F) or the relevant quarter (in the case of a Periodic
Report on Form 6-K in which the Company furnishes its quarterly results of operations for the relevant quarter). The Company agrees that
on such dates as the Securities Act shall require, the Company will (i) file a prospectus supplement with the Commission under the
applicable paragraph of Rule 424(b) under the Securities Act, which prospectus supplement will set forth, within the relevant period,
the amount of Placement Shares sold through the Agents, the Proceeds to the Company and the compensation payable by the Company to the
Agents with respect to such Placement Shares, and (ii) deliver such number of copies of each such prospectus supplement to each exchange
or market on which such sales were effected as may be required by the rules or regulations of such exchange or market; provided, however,
that no such filing shall be required if the Company shall have disclosed such information in its most recent periodic report filed pursuant
to the Exchange Act, and such disclosure is sufficient pursuant to the Exchange Act.
(l) Representation
Dates; Certificate. (1) Prior to the date of the first Placement Notice and (2) each time the Company:
(i) files the Prospectus
relating to the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to an offering of securities
other than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares by means of a post-effective
amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus
relating to the Placement Shares;
(ii) files an Annual
Report on Form 20-F under the Exchange Act (including any Form 20-F/A containing amended financial information or a material amendment
to the previously filed Form 20-F);
(iii) furnishes its
quarterly results of operations on Form 6-K under the Exchange Act; or
(iv) files a current
report on Form 6-K containing amended financial information under the Exchange Act that is incorporated by reference into the Registration
Statement (each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation
Date”);
the Company shall furnish
the Agents (but in the case of clause (iv) above only if the Agents reasonably determine that the information contained in such Form
6-K is material) with a certificate dated the Representation Date, in the form attached hereto as Exhibit 7(l), modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended or supplemented. The requirement to provide a
certificate under this Section 8(l) shall be waived for any Representation Date occurring at a time a Placement Notice is not
pending or a Suspension is in effect, which waiver shall continue until the earlier to occur of the date the Company delivers
instructions for the sale of Placement Shares hereunder (which for such calendar quarter shall be considered a Representation Date)
and the next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement
Shares following a Representation Date when a Placement Notice was not pending or a Suspension was in effect and did not provide the
Agents with a certificate under this Section 8(l), then before the Company delivers the instructions for the sale of
Placement Shares or the Designated Agent sells any Placement Shares pursuant to such instructions, the Company shall provide the
Agents with a certificate in conformity with this Section 8 (l) dated as of the date that the instructions for the sale of
Placement Shares are issued.
(m) Legal
Opinions. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation Date with
respect to which the Company is obligated to deliver a certificate pursuant to Section 8(l) for which no waiver is applicable and
excluding the date of this Agreement, the Company shall cause to be furnished to the Agents (i) a written opinion of each of Skadden,
Arps, Slate, Meagher & Flom LLP, U.S. counsel for the Company (“Company U.S. Counsel”), Meitar Law Offices,
Israeli counsel for the Company (“Company Israeli Counsel”) and Yagod Morris & Associates, intellectual
property counsel for the Company (Company IP Counsel”) or other counsel satisfactory to the Agents and (ii) a negative
assurance letter of Company US Counsel, each in form and substance satisfactory to the Agents and their counsel, substantially similar
to the forms previously provided to the Agents and their counsel, modified, as necessary, to relate to the Registration Statement and
the Prospectus as then amended or supplemented; provided, that in lieu of such opinions for subsequent periodic filings under the
Exchange Act, counsel may furnish the Agents with a letter (a “Reliance Letter”) to the effect that the Agents
may rely on a prior opinion delivered under this Section 8(m) to the same extent as if it were dated the date of such letter (except
that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented
as of the date of the Reliance Letter).
(n) Comfort
Letter. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation Date with
respect to which the Company is obligated to deliver a certificate pursuant to Section 8(l) for which no waiver is applicable and
excluding the date of this Agreement, the Company shall cause (i) its independent registered public accounting firm to furnish the Agents
letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet the requirements
set forth in this Section 8(n) and (ii) the Company’s chief financial officer to furnish the Agents a certificate (the “CFO
Certificate”), dated the date the CFO Certificate is delivered; provided, that if requested by the Agents, the Company
shall cause a Comfort Letter and/or CFO Certificate to be furnished to the Agents within ten (10) Trading Days of the date of occurrence
of any material transaction or event requiring the filing of a current report on Form 6-K containing financial information (including
the restatement of the Company’s financial statements). The Comfort Letter from the Company’s independent registered public
accounting firm shall be in a form and substance satisfactory to the Agents, (i) confirming that they are an independent registered public
accounting firm within the meaning of the Securities Act and the Public Company Accounting Oversight Board (“PCAOB”),
(ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings (the first
such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information
that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the
Registration Statement and the Prospectus, as amended and supplemented to the date of such letter. The CFO Certificate shall be in a form
and substance satisfactory to the Agents, with respect to certain financial data contained in the Registration Statement, Prospectus or
documents incorporated by reference therein, providing “management comfort” with respect to such information, in form and
substance reasonably satisfactory to the Agents.
(o) Market
Activities; Compliance with Regulation M. The Company will not, directly or indirectly, (i) take any action designed to cause
or result in, or that constitutes or would reasonably be expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of Ordinary Shares or (ii) sell, bid for, or purchase Ordinary Shares in
violation of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Agents.
(p) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its subsidiaries
will be or become, at any time prior to the termination of this Agreement, required to register as an “investment company,”
as such term is defined in the Investment Company Act.
(q) No
Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agents in its capacity as agents
hereunder, neither the Agents nor the Company (including its agents and representatives, other than the Agents in their capacity as such)
will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities Act), required
to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement Shares hereunder.
(r) Blue
Sky and Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Agents, to
qualify the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold, under the
applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Agents may designate and to maintain such
qualifications and exemptions in effect for so long as required for the distribution of the Placement Shares (but in no event for less
than one year from the date of this Agreement); provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
In each jurisdiction in which the Placement Shares have been so qualified or exempt, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so
long as required for the distribution of the Placement Shares (but in no event for less than one year from the date of this Agreement).
(s) Sarbanes-Oxley
Act. The Company and the subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal
accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP and including those policies and procedures that (i) pertain
to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets
of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit the preparation of the Company’s
consolidated financial statements in accordance with GAAP, (iii) receipts and expenditures of the Company are being made only in
accordance with management’s and the Company’s directors’ authorization, and (iv) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have
a material effect on its financial statements. The Company and the subsidiaries will maintain such controls and other procedures, including,
without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable regulations thereunder that are
designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, including,
without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal
executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding
required disclosure and to ensure that material information relating to the Company or the subsidiaries is made known to them by others
within those entities, particularly during the period in which such periodic reports are being prepared.
(t) Chief
Legal Officer’s Certificate; Further Documentation. Prior to the date of the first Placement Notice, the Company shall deliver
to the Agents a certificate of the Chief Legal Officer of the Company and attested to by an executive officer of the Company, dated as
of such date, certifying as to (i) the amended and restated articles of association of the Company, (ii) any other organizational documents
of the Company, (iii) the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance of
this Agreement and the issuance of the Placement Shares and (iv) the incumbency of the officers duly authorized to execute this Agreement
and the other documents contemplated by this Agreement. Within five (5) Trading Days of each Representation Date, the Company shall have
furnished to the Agents such further information, certificates and documents as the Agents may reasonably request.
9. Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the
preparation and filing of the Registration Statement, including any fees required by the Commission, and the printing or electronic delivery
of the Prospectus as originally filed and of each amendment and supplement thereto, in such number as the Agents shall deem necessary,
(ii) the printing and delivery to the Agents of this Agreement and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the certificates, if
any, for the Placement Shares to the Designated Agent, including any stock or other transfer taxes and any capital duties, stamp duties
or other duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to the Designated Agent, (iv) the fees
and disbursements of the counsel, accountants and other advisors to the Company, (v) the fees and expenses of the Agents including
but not limited to the fees and expenses of the counsel to the Agents, payable upon the execution of this Agreement, in an amount not
to exceed (a) $75,000 in connection with the execution of this Agreement, (b) in an amount not to exceed $25,000 per calendar quarter
thereafter payable in connection with each Representation Date with respect to which the Company is obligated to deliver a certificate
pursuant to Section 8(l) for which no waiver is applicable excluding the date of this Agreement, and (c) in an amount not to exceed $40,000
for each program “refresh” (i.e. filing of a new registration statement, prospectus or prospectus supplement relating
to the Placement Shares and/or an amendment of this Agreement) executed pursuant to this Agreement, (vi) the qualification or exemption
of the Placement Shares under state securities laws in accordance with the provisions of Section 8(r) hereof, including filing
fees, but excluding fees of the Agents’ counsel, (vii) the printing and delivery to the Agents of copies of any Permitted Free
Writing Prospectus (as defined below) and the Prospectus and any amendments or supplements thereto in such number as the Agents shall
deem necessary, (viii) the preparation, printing and delivery to the Agents of copies of the blue sky survey, (ix) the fees
and expenses of the transfer agent and registrar for the Ordinary Shares, (x) the filing and other fees incident to any review by
FINRA of the terms of the sale of the Placement Shares including the fees of the Agents’ counsel (subject to the cap, set forth
in clause (v) above), and (xi) the fees and expenses incurred in connection with the listing of the Placement Shares on the Exchange.
The Company agrees to pay the fees and expenses of counsel to the Agents set forth in clause (v) above by wire transfer of immediately
available funds directly to such counsel upon presentation of an invoice containing the requisite payment information prepared by such
counsel.
10. Conditions
to the Agents’ Obligations. The obligations of the Agents hereunder with respect to a Placement will be subject to the continuing
accuracy and completeness of the representations and warranties made by the Company herein, to the due performance by the Company of its
obligations hereunder, to the completion by the Agents of a due diligence review satisfactory to it in its reasonable judgment, and to
the continuing satisfaction (or waiver by the Agents in their sole discretion) of the following additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall have become effective and shall be available for the (i) resale of all
Placement Shares issued to the Agents and not yet sold by the Agents and (ii) sale of all Placement Shares contemplated to be issued by
any Placement Notice.
(b) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request
for additional information from the Commission or any other federal or state Governmental Authority during the period of effectiveness
of the Registration Statement, the response to which would require any post-effective amendments or supplements to the Registration Statement
or the Prospectus; (ii) the issuance by the Commission or any other federal or state Governmental Authority of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company
of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Placement Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event
that makes any statement of material fact made in the Registration Statement or the Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue or that requires the making of any changes in the Registration Statement, the Prospectus
or documents incorporated by reference therein so that, in the case of the Registration Statement, it will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading
and, that in the case of the Prospectus, it will not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) No
Misstatement or Material Omission. The Agents shall not have advised the Company that the Registration Statement or Prospectus, or
any amendment or supplement thereto, contains an untrue statement of fact that in the Agents’ reasonable opinion is material, or
omits to state a fact that in the Agents’ reasonable opinion is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(d) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall
not have been any material adverse change in the authorized share capital of the Company or any Material Adverse Effect or any development
that would cause a Material Adverse Effect, or a downgrading in or withdrawal of the rating assigned to any of the Company’s securities
(other than asset backed securities) by any rating organization or a public announcement by any rating organization that it has under
surveillance or review its rating of any of the Company’s securities (other than asset backed securities), the effect of which,
in the case of any such action by a rating organization described above, in the reasonable judgment of the Agents (without relieving the
Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with
the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.
(e) Legal
Opinions. The Agents shall have received the opinions and negative assurance letters required to be delivered pursuant to Section
8(m) on or before the date on which such delivery of such opinions is required pursuant to Section 8(m).
(f) Comfort
Letter. The Agents shall have received the Comfort Letter required to be delivered pursuant to Section 8(n) on or before the
date on which such delivery of such Comfort Letter is required pursuant to Section 8(n).
(g) Representation
Certificate. The Agents shall have received the certificate required to be delivered pursuant to Section 8(l) on or before
the date on which delivery of such certificate is required pursuant to Section 8(l).
(h) No
Suspension. Trading in the Ordinary Shares shall not have been suspended on the Exchange and the Ordinary Shares shall not have been
delisted from the Exchange.
(i) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 8(l), the Company shall
have furnished to the Agents such appropriate further information, opinions, certificates, letters and other documents as the Agents may
reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof.
(j) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the issuance
of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424.
(k) Approval
for Listing. The Placement Shares shall either have been (i) approved for listing on the Exchange, subject only to notice of issuance,
or (ii) the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to, the issuance
of any Placement Notice and the Exchange shall have reviewed such application and not provided any objections thereto.
(l) FINRA.
If applicable, FINRA shall have raised no objection to the terms of this offering and the amount of compensation allowable or payable
to the Agents as described in the Prospectus.
(m) No
Termination Event. There shall not have occurred any event that would permit the Agents to terminate this Agreement pursuant to Section
13(a).
11. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agents, their affiliates and their respective partners, members,
directors, officers, employees and agents and each person, if any, who controls the Agents or any affiliate within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading,
or arising out of any untrue statement or alleged untrue statement of a material fact included in any related Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 11(d) below) any such settlement is effected with the written consent of the Company, which consent
shall not unreasonably be delayed or withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission (whether or not a
party), to the extent that any such expense is not paid under (i) or (ii) above,
provided, however,
that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with the Agents’ Information
(as defined below).
(b) Agent
Indemnification. The Agents agree, severally but not jointly, to indemnify and hold harmless the Company and its directors and each
officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described
in the indemnity contained in Section 11(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendments thereto), the Prospectus (or any amendment or supplement
thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information
relating to the Agents and furnished to the Company in writing by the Agents expressly for use therein. The Company hereby acknowledges
that the only information that the Agents have furnished to the Company expressly for use in the Registration Statement, the Prospectus,
any Prospectus Supplement or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) are the statements set forth
in the seventh and eighth paragraphs under the caption “Plan of Distribution” in the Prospectus (the “Agents’
Information”).
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 11 will, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this Section
11, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served, but the omission
so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might have to any indemnified
party otherwise than under this Section 11 and (ii) any liability that it may have to any indemnified party under the foregoing
provision of this Section 11 unless, and only to the extent that, such omission results in the forfeiture of substantive rights
or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies the indemnifying party
of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written
notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any other legal expenses except as provided below and except for the reasonable
costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have
the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense
of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying
party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available
to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (3) a conflict
or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action or counsel reasonably
satisfactory to the indemnified party, in each case, within a reasonable time after receiving notice of the commencement of the action;
in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party
or parties. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (plus local
counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements
and other charges will be reimbursed by the indemnifying party promptly as they are incurred. An indemnifying party will not, in any event,
be liable for any settlement of any action or claim effected without its written consent (such consent not to be unreasonably withheld
or delayed). No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section
11 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes an express
and unconditional release of each indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all
liability arising out of such litigation, investigation, proceeding or claim and (2) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement
Without Consent if Failure to Reimburse. If an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement
of the nature contemplated by Section 11(a)(ii) effected without its written consent if (1) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid request, (2) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (3) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs
of this Section 11 is applicable in accordance with its terms but for any reason is held to be unavailable or insufficient from
the Company or the Agents, the Company and the Agents will contribute to the total losses, claims, liabilities, expenses and damages (including
any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted) to which the Company and the Agents may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the Agents on the other hand. The relative benefits received
by the Company on the one hand and the Agents on the other hand shall be deemed to be in the same proportion as the total net proceeds
from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation received by the
Agents from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence
is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only
the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one hand, and the Agents,
on the other hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action
in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company or the Agents, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such statement or omission. The Agents’ obligations in this
Section 11(e) to contribute are several in proportion to their respective obligations hereunder and not joint. The Company and
the Agents agree that it would not be just and equitable if contributions pursuant to this Section 11(e) were to be determined
by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect
thereof, referred to above in this Section 11(e) shall be deemed to include, for the purpose of this Section 11(e), any
legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or
claim to the extent consistent with Section 11(c) hereof. Notwithstanding the foregoing provisions of this Section 11(e),
the Agents shall not be required to contribute any amount in excess of the commissions received by it under this Agreement and no person
found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11(e), any person who controls
a party to this Agreement within the meaning of the Securities Act, any affiliates of the Agents and any officers, directors, partners,
employees or agents of the Agents or any of its affiliates, will have the same rights to contribution as that party, and each director
of the Company and each officer of the Company who signed the Registration Statement will have the same rights to contribution as the
Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution may be made under this Section 11(e), will notify
any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party or parties from
whom contribution may be sought from any other obligation it or they may have under this Section 11(e) except to the extent that
the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution
is sought. Except for a settlement entered into pursuant to the last sentence of Section 11(c) hereof, no party will be liable
for contribution with respect to any action or claim settled without its written consent if such consent is required pursuant to Section
11(c) hereof.
12. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 11 of this Agreement and
all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (i) any investigation made by or on behalf of the Agents, any controlling persons, or the Company (or any of
their respective officers, directors, employees or controlling persons), (ii) delivery and acceptance of the Placement Shares and
payment therefor or (iii) any termination of this Agreement.
13. Termination.
(a) An
Agent may terminate this Agreement with respect to itself, by notice to the Company and the other Agent, as hereinafter specified at any
time (1) if there has been, since the time of execution of this Agreement or since the date as of which information is given in the
Prospectus, any change, or any development or event involving a prospective change, in the condition, financial or otherwise, or in the
business, properties, earnings, results of operations or prospects of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, which individually or in the aggregate, in the sole judgment of such Agent is material
and adverse and makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement
Shares, (2) if there has occurred any material adverse change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving
a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such
as to make it, in the judgment of such Agent, impracticable or inadvisable to market the Placement Shares or to enforce contracts for
the sale of the Placement Shares, (3) if trading in the Ordinary Shares has been suspended or limited by the Commission or the Exchange,
or if trading generally on the Exchange has been suspended or limited, or minimum prices for trading have been fixed on the Exchange,
(4) if any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market shall have occurred
and be continuing, (5) if a major disruption of securities settlements or clearance services in the United States shall have occurred
and be continuing, or (6) if a banking moratorium has been declared by either U.S. Federal or New York or Israeli authorities. Any
such termination shall be without liability of any party to any other party except that the provisions of Section 9 (Payment of
Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations and Agreements to Survive Delivery),
Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in
full force and effect notwithstanding such termination. If an Agent elects to terminate this Agreement as provided in this Section
13(a), such Agent shall provide the required notice as specified in Section 14 (Notices).
(b) The
Company shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole discretion
at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that
the provisions of Section 9, Section 11, Section 12, Section 18 and Section 19 hereof shall remain
in full force and effect notwithstanding such termination.
(c) Each
of the Agents shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its
sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 9, Section 11, Section 12, Section 18 and Section 19 hereof
shall remain in full force and effect notwithstanding such termination.
(d) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), or (c) above or
otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in
all cases be deemed to provide that Section 9, Section 11, Section 12, Section 18 and Section 19 shall
remain in full force and effect.
(e) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agents or the Company,
as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares
shall settle in accordance with the provisions of this Agreement.
14. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and if sent to the Agents, shall be delivered to:
Cantor Fitzgerald &
Co.
110 East 59th Street,
6th Floor
New York, NY 10022
Attention: Capital
Markets
Facsimile: (212)
307-3730
and:
Cantor Fitzgerald &
Co.
110 East 59th Street,
6th Floor
New York, NY 10022
Attention: General
Counsel
Facsimile: (212)
829-4708
and:
Mizuho Securities USA LLC
1271 Avenue of the Americas
New York, NY 10020
Attention: Stephen
Roney; Kevin Mullane; Timothy Hogan
Telephone: (212)
205-7527; (212) 205-7645; (212) 205-7693
Email: Stephen.Roney@mizuhogroup.com;
Kevin.Mullane@mizuhogroup.com; Timothy.Hogan@mizuhogroup.com
And:
Mizuho Securities
USA LLC
1271 Avenue of the Americas
New York, NY 10020
Email: legalnotices@mizuhogroup.com
with a copy to:
Latham & Watkins
LLP
12670 High Bluff
Drive
San Diego, CA 92130
Attention: Michael
E. Sullivan
Email: Michael.Sullivan@lw.com
Facsimile: (858)
523-5450
and if to the Company,
shall be delivered to:
NANO-X IMAGING LTD
Ofer Tech Park
94 Shlomo Shmeltzer
Road
Petach Tikva
Israel 4970602
Attention: Chief
Financial Officer
Email: Ran.d@nanox.vision
NANO-X IMAGING LTD
Ofer Tech Park
94 Shlomo Shmeltzer
Road
Petach Tikva
Israel 4970602
Attention: Chief
Legal Officer
Email: Marina.gf@nanox.vision
with a copy to:
Skadden, Arps, Slate,
Meagher & Flom LLP
One Manhattan West New
York, New York 10001
Attention: Michael
J. Zeidel
Email: Michael.Zeidel@skadden.com
Facsimile: (212)
735-3259
Skadden, Arps, Slate,
Meagher & Flom LLP
One Manhattan West
New York, New York 10001
Attention: Yossi
Vebman
Email: Yossi.Vebman@skadden.com
Facsimile: (212)
735-3719
Each party to this Agreement
may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. Each
such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with
an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on the
next succeeding Business Day, (ii) by Electronic Notice as set forth below, (iii) on the next Business Day after timely delivery
to a nationally-recognized overnight courier or (iv) on the Business Day actually received if deposited in the U.S. mail (certified
or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement, “Business Day”
shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 14 if sent to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending
Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall
be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”) which shall be
sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
15. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agents and their respective successors
and the parties referred to in Section 11 hereof. References to any of the parties contained in this Agreement shall be deemed to include
the successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations under
this Agreement without the prior written consent of the other party; provided, however, that the Agents may assign their
rights and obligations hereunder to an affiliate thereof without obtaining the Company’s consent.
16. Adjustments
for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to
take into account any share split, share dividend or similar event effected with respect to the Placement Shares.
17. Entire
Agreement; Amendment; Severability; Waiver. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof may
be amended except pursuant to a written instrument executed by the Company and the Agents. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent
jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable,
and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision
was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof
shall be in accordance with the intent of the parties as reflected in this Agreement. No implied waiver by a party shall arise in the
absence of a waiver in writing signed by such party. No failure or delay in exercising any right, power, or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power, or privilege hereunder.
18. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE
CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED
HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE
OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED)
TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW. THE COMPANY IRREVOCABLY APPOINTS C T CORPORATION SYSTEM, AS ITS AUTHORIZED AGENT UPON WHICH PROCESS MAY BE SERVED
IN ANY SUCH SUIT OR PROCEEDING, AND AGREES THAT SERVICE OF PROCESS UPON SUCH AGENT, AND WRITTEN NOTICE OF SAID SERVICE TO THE COMPANY
BY THE PERSON SERVING THE SAME TO 28 LIBERTY STREET, NEW YORK, NEW YORK 10005 SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS
UPON THE COMPANY IN ANY SUCH SUIT OR PROCEEDING. THE COMPANY REPRESENTS AND WARRANTS THAT SUCH AGENT HAS AGREED TO ACT AS THE COMPANY’S
AGENT FOR SERVICE OF PROCESS, AND THE COMPANY FURTHER AGREES TO TAKE ANY AND ALL ACTIONS AS MAY BE NECESSARY TO MAINTAIN SUCH DESIGNATION
AND APPOINTMENT OF SUCH AGENT IN FULL FORCE AND EFFECT FOR A PERIOD OF SEVEN YEARS FROM THE DATE OF THIS AGREEMENT. FOR THE AVOIDANCE
OF DOUBT, CANTOR FITZGERALD & CO. AND MIZUHO SECURITIES USA LLC CAN BE SERVED IN ANY SUCH SUIT OR PROCEEDING AT THE ADDRESS INDICATED
UNDER SECTION 14 HEREOF.
20. Waiver
of Immunity. With respect to any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby, the Company irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty
or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise
be entitled, and with respect to any such suit or proceeding, the Company waives any such immunity in any court of competent jurisdiction,
and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such suit or proceeding, including, without
limitation, any immunity pursuant to the U.S. Foreign Sovereign Immunities Act of 1976, as amended.
21. Currency
Provisions. The obligations of the Company pursuant to this Agreement in respect of any sum due to an Agent, its partners, members,
directors, officers, employees and agents and each person, if any, who controls an Agent or any affiliate within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, shall, notwithstanding any judgment in a currency other than United States
dollars, not be discharged until the first business day, following receipt by such person of any sum adjudged to be so due in such other
currency, on which such person may in accordance with normal banking procedures purchase United States dollars with such other currency.
If the United States dollars so purchased are less than the sum originally due to any such person in United States dollars hereunder,
the Company agrees as a separate obligation and notwithstanding any such judgment, to indemnify such person against such loss.
22. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile, electronic
mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic
Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered
shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
23. Construction.
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof. References herein
to any law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority shall be deemed to refer to
such law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority as amended, reenacted, supplemented
or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated thereunder.
24. Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior written consent of the Agents,
and the Agents represent, warrant and agree that, unless they obtain the prior written consent of the Company, they have not made and
will not make any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free
writing prospectus consented to by the Agents or by the Company, as the case may be, is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free
Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with
the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any,
listed in Exhibit 21 hereto are Permitted Free Writing Prospectuses
25. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the
Agents are acting solely as agents in connection with the public offering of the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company
or any of its respective affiliates, shareholders (or other equity holders), creditors or employees or any other party, on the one hand,
and the Agents, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective
of whether or not the Agents have advised or are advising the Company on other matters, and the Agents have no obligation to the Company
with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) neither
the Agents nor their affiliates have provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it
is aware that the Agents and their affiliates are engaged in a broad range of transactions which may involve interests that differ from
those of the Company and the Agents and their affiliates have no obligation to disclose such interests and transactions to the Company
by virtue of any fiduciary, advisory or agency relationship or otherwise; and
(e) it
waives, to the fullest extent permitted by law, any claims it may have against the Agents or their affiliates for breach of fiduciary
duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the Agents
and their affiliates shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such
a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or
creditors of Company.
26. Payments.
All payments made or deemed to be made by the Company under this Agreement, if any, to any Agent and each of such Agent’s affiliates
and their respective partners, members, directors, officers, employees and agents, and each person, if any, who (i) controls such Agent
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control
with such Agent (each, a “Payee”), as the case may be, will be made without withholding or deduction for or on account
of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of the
State of Israel or any political subdivision or any taxing authority thereof or therein (each, a “Relevant Taxing Jurisdiction”)
unless the Company is or becomes required by law to withhold or deduct such taxes, duties, assessments or other governmental charges.
In such event, except for any taxes, duties or governmental charges imposed on an applicable Payee by the Relevant Taxing Jurisdiction
as a result of (A) such Payee being (currently or in the past) a tax resident of the Relevant Taxing Jurisdiction imposing such withholding
or deduction, having a permanent establishment in the Relevant Taxing Jurisdiction imposing such withholding or deduction (other than
as a result of the execution and delivery of, or performance of, its obligations under this Agreement or receipt of any payments or enforcement
of rights under this Agreement) or as a result of any present or former connection (other than any connection resulting from the transactions
contemplated by, or from such Payee having entered into, executed, performed its obligations under, or received payments pursuant to,
or from the enforcement of, this Agreement) between such Payee and the Relevant Taxing Jurisdiction imposing such withholding or deduction;
or (B) the Payee providing services from Israel in connection with this Agreement, the Company will pay such additional amounts as will
result, after such withholding or deduction, in the receipt by the applicable Payee of the amounts that would otherwise have been received
by such Payee had such deduction or withholding not been required. All sums payable, paid or deemed payable under this Agreement shall
be considered exclusive of value added tax, sales tax or other similar taxes which shall be borne by, paid, collected and remitted by
the Company, if applicable, in accordance with applicable law. The Agent(s) shall reasonably cooperate with the Company, by providing
reasonably required information for the Company to obtain an exemption certificate from withholding or deduction in connection with the
payments under this Agreement.
27. Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable Time”
means (i) each Representation Date, (ii) the time of each sale of any Placement Shares pursuant to this Agreement and (iii) each Settlement
Date.
“Governmental
Authority” means (i) any federal, provincial, state, local, municipal, national or international government or governmental
authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court,
tribunal, arbitrator or arbitral body (public or private); (ii) any self-regulatory organization; or (iii) any political subdivision of
any of the foregoing.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement
Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that is a “written
communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering that
does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be
filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act Regulations.
“Rule 164,”
“Rule 172,” “Rule 405,” “Rule 415,” “Rule 424,”
“Rule 424(b),” “Rule 430B,” and “Rule 433”
refer to such rules under the Securities Act Regulations.
All references in this Agreement
to financial statements and schedules and other information that is “contained,” “included” or “stated”
in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information that is incorporated by reference in the Registration Statement or the Prospectus,
as the case may be.
All references in this Agreement
to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy
filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer
Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to include
the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to “supplements” to the
Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with
any offering, sale or private placement of any Placement Shares by the Agents outside of the United States.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Company and the Agents, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company and the Agents.
| |
Very truly yours, |
| |
|
| |
NANO-X IMAGING LTD |
| |
|
| |
By: |
/s/ Ran Daniel |
| |
|
Name: |
Ran Daniel |
| |
|
Title: |
Chief Financial Officer |
| |
ACCEPTED as of the date first-above written: |
| |
|
| |
CANTOR FITZGERALD & CO. |
| |
|
| |
By: |
/s/ Sameer Vasudev |
| |
|
Name: |
Sameer Vasudev |
| |
|
Title: |
Managing Director |
| |
MIZUHO SECURITIES USA LLC |
| |
|
| |
By: |
/s/ Stephen Roney |
| |
|
Name: |
Stephen Roney |
| |
|
Title: |
Managing Director Head of ECM Syndicate & Healthcare Origination |
[Signature page to NANO-X ATM Sales Agreement]
SCHEDULE 1
Form of Placement Notice
| From: |
NANO-X IMAGING LTD |
| |
|
| To: |
[Cantor Fitzgerald & Co. / Mizuho Securities USA LLC] |
| |
|
|
Attention: [●] |
| |
|
| Subject: |
Placement Notice |
| |
|
| Date: |
[●], 202[●] |
Ladies and Gentlemen:
Pursuant to the terms and
subject to the conditions contained in the Sales Agreement between NANO-X IMAGING LTD, a company organized under the laws of the State
of Israel (the “Company”), Cantor Fitzgerald & Co. and Mizuho Securities USA LLC, dated [●], 2024,
the Company hereby requests that [Cantor Fitzgerald & Co. / Mizuho Securities USA LLC] sell up to [●] of the Company’s
Ordinary Shares, par value NIS 0.01 per share, at a minimum market price of $[●] per share, during the time period beginning [month,
day, time] and ending [month, day, time].
SCHEDULE 2
Compensation
The Company shall pay to the
Designated Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to 3.0% of the aggregate gross
proceeds from each sale of Placement Shares.
SCHEDULE 3
Notice Parties
The Company
Ran Daniel: ran.d@nanox.vision
Marina Gofman Feler: marina.gf@nanox.vision
The Agents
Sameer Vasudev: SVasudev@cantor.com
Stephen Roney: Stephen.Roney@mizuhogroup.com
Kevin Mullane: Kevin.Mullane@mizuhogroup.com
Timothy Hogan: Timothy.Hogan@mizuhogroup.com
With copies to:
CFCEO@cantor.com
legalnotices@mizuhogroup.com
Exhibit 7(l)
Form of Representation Date
Certificate Pursuant to Section 8(l)
The undersigned, the duly qualified and elected
Chief Legal Officer of NANO-X IMAGING LTD, a company organized under the laws of the State of Israel (the “Company”),
does hereby certify in such capacity and on behalf of the Company, pursuant to Section 8(l) of the Controlled Equity OfferingSM
Sales Agreement, dated June 7, 2024, by and among Cantor Fitzgerald & Co. and Mizuho Securities USA LLC, as agents (collectively,
the “Agents”) and the Company (the “Sales Agreement”), that to the best of the knowledge
of the undersigned:
(i) The representations and warranties of the
Company in Section 7 of the Sales Agreement are true and correct on and as of the date hereof with the same force and effect
as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific
date and which were true and correct as of such date; provided, however, that such representations and warranties also shall
be qualified by the disclosure included or incorporated by reference in the Registration Statement and the Prospectus; and
(ii) The Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied pursuant to the Sales Agreement at or prior to the date hereof.
Each of Skadden, Arps, Slate, Meagher & Flom
LLP and Meitar Law Offices, counsels to the Company, and Latham & Watkins LLP, counsel to the Agents, is entitled to rely upon this
certificate in connection with the respective opinions and/or negative assurance given by such firms pursuant to the Sales Agreement.
Capitalized terms not defined
herein but used herein shall have the same meaning ascribed to them in the Sales Agreement.
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NANO-X IMAGING LTD |
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Date: [●]
Exhibit 21
Permitted Free Writing Prospectus
None.
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