VBIX ViewBix Inc (PK)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of report (date of earliest event reported): July 30, 2024 (July 25, 2024)

 

VIEWBIX INC.

(Exact Name of Registrant as Specified in its Charter)

 

Commission File No.: 000-15746

 

Delaware		68-0080601
(State of Incorporation)		(I.R.S. Employer Identification No.)

 

3 Hanehoshet St, Building B, 7th floor, Tel Aviv, Israel		6971068
(Address of Registrant’s Office)		(ZIP Code)

 

Registrant’s Telephone Number, including area code: +972 73-391-2900

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
N/A		N/A		N/A

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

 

Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

Securities Exchange Agreement

 

On July 30, 2024, Viewbix Inc. (the “Company” or “Viewbix”), entered into a securities exchange agreement (the “Agreement”), with Metagramm Software Ltd., an Israeli company (“Metagramm”), pursuant to which Viewbix agreed to issue to the Metagramm 9.99% of its issued and outstanding capital stock on a pre-closing basis, in exchange for 19.99% of Metagramm’s issued and outstanding share capital on a pre-closing basis. The Company and Metagramm each determined that the anticipated synergy of the opposite party presented a mutual benefit, primarily through certain potential collaborative efforts in both R&D and sales and marketing. The parties anticipate to close the Agreement on the date of the Uplist (as defined below).

 

The Agreement contained customary representations, warranties and agreements by each of the Company and Metagramm. The representations, warranties and covenants contained in the Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement and were subject to limitations agreed upon by the contracting parties.

 

The Agreement is filed as Exhibit 10.1 hereto and is incorporated herein by reference. The foregoing descriptions of the terms of the Agreement are qualified in their entirety by reference to such exhibit.

 

Amendment to Second Credit Facility

 

On July 22, 2024, the Company reported in its Current Report on Form 8-K that on July 22, 2024, it entered into an amended and restated facility agreement (the “Second Facility Agreement”) for a $2.5 million credit facility (the “Second Facility Loan Amount” and the “Second Credit Facility”, respectively) with a certain lender (the “Second Facility Lender”) that amended and restated the prior facility agreement entered into on July 4, 2024 between the Company and the Second Facility Lender. On July 25, 2024, the Company and the Second Facility Lender entered into an amendment to the Second Facility Agreement (the “Second Amendment”) whereby the parties agreed to amend the term of the Second Credit Facility such that the Second Facility Loan Amount will remain available until the earlier of (a) such date that the Second Facility Loan Amount has been drawn down in full, (b) the thirty six (36) month anniversary of the date of the Second Amendment, or (c) upon such date that the Company complete a financing transaction in the amount of $2,000,000.

 

The Second Amendment is filed as Exhibit 10.2 hereto and is incorporated herein by reference. The foregoing descriptions of the terms of the Agreement are qualified in their entirety by reference to such exhibit.

 

Item 2.03 Creation of a direct financial obligation or an obligations under an off-balance sheet arrangement.

 

On July 28, 2024, the Company entered into a third facility agreement, for a $3.0 million (the “Third Facility Loan Amount”) credit facility (the “Third Credit Facility”) with certain lenders (the “Third Facility Lenders” and the “Third Facility Agreement”, respectively).

 

The Third Facility Loan Amount will remain available until the earliest to occur (a) such date that the Third Facility Loan Amount has been drawn down in full, (b) the forty (40) month anniversary of the Third Facility Agreement, or (c) upon such date that the Company completes a $2.5 million fundraise (the “Third Facility Term”). In the event the Third Facility Term lapses, the Third Facility Loan Amount shall be repaid to the Third Facility Lenders immediately thereafter.

 

The Third Facility Agreement sets forth a drawdown schedule as follows: (i) an aggregate of $80,000 shall be drawn down immediately upon the effective date of the Third Facility Agreement, (ii) an aggregate of $80,000 shall be drawn down following the effectiveness of an uplisting of the Company’s shares to a national securities exchange (the “Uplist”), and (iii) an aggregate of $80,000 may be drawn down on a monthly basis thereafter until the Third Facility Loan Amount is exhausted.

 

The Third Credit Facility will accrue interest at a rate of 12% per annum (the “Third Facility Interest”). The Third Facility Interest accrued on the Third Facility Loan Amount upon the first anniversary of the Effective Date shall be repaid to the Third Facility Lenders in advance on the effective date of the Third Facility Agreement, in (i) shares of common stock at a conversion rate of $0.25 (on a pre-reverse stock split basis), for each U.S. dollar of Third Facility Interest accrued on the respective Third Facility Loan Amount (the “Third Facility Shares”), and (ii) a warrant to purchase a number of shares of common stock equal to the Third Facility Shares, in the form attached hereto as Exhibit 10.3 (the “Third Facility Warrant”). The Third Facility Warrant is exercisable upon issuance at an exercise price of $0.25 per share of common stock (on a pre-reverse stock split basis), subject to certain beneficial ownership limitations and price adjustments set forth therein, and will have a three-year term from the issuance date. As of the second year anniversary of the Third Credit Facility, and onward, Interest will be paid for each lapsed year in cash, for each drawdown actually utilized by the Borrower.

 

 

Immediately following the effectiveness of the Uplist, (i) $160,000 of the Third Facility Loan Amount will automatically convert into shares of common stock at a conversion rate equal to $0.25 per share of common stock (on a pre-reverse stock split basis) (the “Third Facility Convertible Stock”) and (ii) the Company will issue a Third Facility Warrant to purchase a number of shares of common stock equal to the Third Facility Convertible Stock with an exercise price of $0.25 per share (on a pre-reverse stock split basis), ((i) and (ii), collectively a “Third Facility Conversion Unit”. The remaining Third Facility Loan Amount outstanding and not converted following the Uplist shall remain available for the duration of the Third Facility Term, whereby, upon the lapse of the Third Facility Term, the utilized Third Facility Loan Amount shall be repaid to the Third Facility Lenders immediately thereafter.

 

In addition and in connection with the Third Credit Facility, the Company agreed to pay a certain Third Facility Lender a one-time fee consisting of 600,000 shares of common stock of the Company, on a pre-reverse stock split basis.

 

The Company undertook to file a registration statement with the Securities and Exchange Commission within thirty (30) days of the date of the Third Facility Agreement to register, inter alia, the resale by the Third Facility Lenders of shares of common stock underlying the Third Credit Facility, the Third Facility Warrants and the Third Facility Conversion Unit.

 

Copies of the Third Facility Agreement and the Third Facility Warrant are filed as Exhibits 10.3 and 10.4, respectively, to this Current Report on Form 8-K, and are incorporated by reference herein. The foregoing summaries of such documents are subject to, and qualified in their entirety by reference to such exhibits.

 

The securities described herein have not been registered under the Securities Act of 1933, as amended, and may not be sold in the United States absent registration or an applicable exemption from the registration requirements. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation to buy nor shall there be any sale of the shares of common stock or warrants 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.

 

Item 3.02 Unregistered Sales of Securities Convertible or Exercisable into Equity Securities.

 

The information regarding the issuance of securities set forth in Item 1.01 and 2.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02.

 

The shares of common stock described in this Item 3.02 of this Current Report on Form 8-K have been or will be issued in reliance upon the exemption from the registration requirements in Regulation S under the Securities Act.

 

Item 8.01 Other Events.

 

On July 30, 2024, the Company issued a press release titled “Viewbix to Acquire 19.99% Stake in AI and Natural Language Processing Grammar Company”. A copy of this press release is furnished herewith as Exhibit 99.1 to this Current Report on Form 8-K.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit No.		Exhibit Description
10.1		Securities Exchange Agreement, by and between Viewbix Inc. and Metagramm Software Ltd., dated July 30, 2024
10.2		Second Amendment to Facility Agreement, dated July 25, 2024
10.3		Form of Facility Agreement, dated July 28, 2024
10.4		Form of Warrant
99.1		Press release issued by Viewbix Inc., titled “Viewbix to Acquire 19.99% Stake in AI and Natural Language Processing Grammar Company”
104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	Viewbix Inc.
	By:	/s/ Amihay Hadad
	Name:	Amihay Hadad
	Title:	Chief Executive Officer

 

Date: July 30, 2024

 

 

 

Exhibit 10.1

 

SECURITIES EXCHANGE AGREEMENT

 

This SECURITIES EXCHANGE AGREEMENT (the “Agreement”) is entered into as of July 30, 2024 by and among Viewbix, Inc., a Delaware corporation, with an office address of 3 Hanehoshet St, Building B, 7th floor, Tel Aviv, , Israel, 6971068 (“Viewbix”) and Metagramm Software Ltd., an Israeli company, with an office address 4 Hamelacha St. Netania, Israel (“Metagramm”). Viewbix and Metagramm are each a “Party” and collectively, the “Parties”.

 

WHEREAS, each of the Parties has evaluated the opposite Party’s business and operations, and has determined that the anticipated Exchange (as defined herein) between the two Parties presents a mutual benefit to each of the Parties and their respective stockholders, which the Parties anticipate to occur following, and contingent upon, the Closing (as defined herein) of the transactions contemplated hereunder; and

 

WHEREAS, each of the Parties believes that it is in its best interests, and the best interests of its respective stockholders, to exchange (the “Exchange”) such number of shares of common stock of each respective party, such that, and in consideration thereof, immediately upon the Closing Date, Viewbix shall be issued 19.99% of the issued and outstanding capital stock of Metagramm as of immediately prior to the Closing (as defined herein) (the “Metagramm Exchange Shares”) and Metagramm shall be issued 9.99% of the issued and outstanding capital stock of Viewbix as of immediately prior to the Closing (the “Viewbix Exchange Shares” and together with the Metagramm Exchange Shares, the “Exchange Shares”), all upon the terms and subject to the conditions set forth in this Agreement.

 

NOW THEREFORE, on the stated premises and for and in consideration of the mutual covenants and agreements hereinafter set forth and the mutual benefits to the Parties to be derived herefrom, and intending to be legally bound hereby, the Parties hereby agree as follows:

 

ARTICLE I

SECURITIES EXCHANGE

 

Section 1.01 The Exchange. On the terms and subject to the conditions set forth in this Agreement, on the Closing Date, Viewbix shall issue to Metagramm, and Metagramm shall issue to Viewbix, the Exchange Shares.

 

Section 1.02 Closing. The closing (the “Closing”) of the transactions contemplated by this Agreement (the “Transactions”) shall take place on the effective date of Viewbix’s uplist of its common stock to a national exchange, and subject to all conditions precedent and obligations of the Parties to consummate such Transactions contemplated hereby, including as set forth in Section 1.03, are satisfied or waived by the respective Party, at such location to be determined by the Parties (the “Closing Date”). Either Party may terminate this Agreement in the event that the Closing Date shall not have occurred within thirty (30) days of the date hereof (such date referred to herein as the “Outside Date”); provided, however, that the right to terminate this Agreement pursuant to this Section shall not be available to any party hereto (i) whose actions or omissions have been a principal cause of, or primarily resulted in, the failure of the Closing to occur on or before such date and such action or failure to act constitutes a breach of this Agreement or (ii) that is in material breach of this Agreement.

 

Section 1.03 Conditions to Closing. The respective obligations of each of the Parties to effect the Closing shall be subject to the satisfaction at or prior to the Closing of each of the following conditions:

 

(a) Good Standing Certificate. Viewbix shall have delivered to Metagramm a certificate of good standing and Metagramm shall have delivered a certificate of good standing (or the equivalent thereof in the State of Israel), issued within two (2) business days of Closing, which certificate shall have been issued by the governing entity of the relevant jurisdiction.

 

(b) No Injunctions. In connection with each of Viewbix and Metagramm, no statute, rule, regulation, order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or is pending by or before any governmental authority of competent jurisdiction which in any material respect restricts, prohibits or threatens to restrict or prohibit the consummation of any of the transactions contemplated herein.

 

 

(c) Regulation S Questionnaire. Metagramm shall have delivered to Viewbix a duly completed and executed Annex “A” – Regulation S Questionnaire.

 

(d) Representations and Warranties. The representations and warranties made by each of the Parties herein shall be true and correct in all material respects as of the date hereof and as of the Closing with the same effect as if the representations and warranties were made as of the date hereof and as of the Closing.

 

(e) Covenants. All covenants, agreements and conditions contained in this Agreement to be performed by either Party on or prior to the Closing shall have been performed or complied with in all material respects.

 

With respect to the closing conditions listed in (h) and (i) above, the Parties shall deliver at the Closing an executed officer’s certificate to such effect.

 

Section 1.04 Taxes. Viewebix and Metagramm shall separately bear the tax consequences arising from the issuances of the Exchange Shares.

 

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF VIEWBIX

 

Viewbix represents and warrants to, and covenants with, Metagramm that, as of the date hereof, except for those representations and warranties and covenants that speak of a different date:

 

Section 2.01 Viewbix Exchange Shares. The Viewbix Exchange Shares shall represent 9.99% of the issued and outstanding share capital of Viewbix as of the Closing Date (as of immediately prior to the Closing).

 

Section 2.02 Organization, Standing and Corporate Power of Viewbix. Viewbix is duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has the requisite corporate power and authority to own, lease and operate its properties and other assets and to carry on its business as now being conducted. Viewbix is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed (individually or in the aggregate) would not have a Material Adverse Effect with respect to Viewbix. As used in this Agreement, the term “Material Adverse Effect” or “Material Adverse Change” shall mean any change or effect that either individually or in the aggregate with all other such changes or effects is materially adverse to the business, assets, properties, condition (financial or otherwise) or results of operations of each of the Parties taken as a whole.

 

Section 2.03 Capital Structure. The authorized capital stock of Viewbix consists of (i) 490,000,000 shares of common stock, $0.0001 par value, of which (a) 18,839,686 shares are issued and outstanding on a pre-reverse split basis as of the date of the hereof and (b) 28,405,684 shares of common stock on a pre-reverse split basis underlying options or warrants of which are outstanding as of the date hereof and (c) 6,031,828 shares of common stock on a pre-reverse split basis that Viewbix has committed to issue to certain recipients following the date hereof, and (ii) 10,000,000 shares of preferred stock, $0.0001 par value, of which none are issued and outstanding. Except as disclosed in the Viewbix Reports (as defined below) and as set forth herein, there are no outstanding bonds, debentures, notes or other indebtedness or other securities of Viewbix having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters of which stockholders of Viewbix are entitled to vote on. Except as disclosed in Viewbix Reports and as set forth herein, there are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which Viewbix is a party or by which it is bound obligating Viewbix to issue, deliver or sell, or cause to be issued, delivered or sold, additional common stock of Viewbix or other equity or voting securities of Viewbix or obligating Viewbix to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. There are no outstanding contractual obligations, commitments, understandings or arrangements of Viewbix to repurchase, redeem or otherwise acquire or make any payment in respect of any common stock of Viewbix or any other securities of Viewbix. There are no agreements or arrangements pursuant to which Viewbix is or could be required to register Viewbix’ common stock or other securities under the Securities Act of 1933, as amended (the “Securities Act”) or other agreements or arrangements with or among any holders of Viewbix or with respect to any securities of Viewbix. The issuance of the Viewbix Exchange Shares will not trigger any anti-dilution rights of any existing securities of Viewbix.

 

 

Section 2.04 Authority; Non-Contravention. Viewbix has all requisite authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by Viewbix and the consummation by Viewbix of the transactions contemplated by this Agreement have been (or at Closing will have been) duly authorized by all necessary corporate action on the part of Viewbix. This Agreement has been duly executed and delivered by and constitutes a valid and binding obligation of Viewbix, enforceable in accordance with its terms. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated by this Agreement and compliance with the provisions of this Agreement will not, conflict with, or result in any breach or violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of or “put” right with respect to any obligation or to loss of a material benefit under, or result in the creation of any lien upon any of the properties or assets of Viewbix under, (i) the charter documents of Viewbix, (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to Viewbix or their respective properties or assets, or (iii) subject to the governmental filings and other matters referred to in the following sentence, any judgment, order, decree, statute, law, ordinance, rule, regulation or arbitration award applicable to Viewbix or their respective properties or assets, other than, in the case of clauses (ii) and (iii), any such conflicts, breaches, violations, defaults, rights, losses or liens that individually or in the aggregate could not have a Material Adverse Effect with respect to Viewbix or could not prevent, hinder or materially delay the ability of Viewbix to consummate the transactions contemplated by this Agreement. No consent, approval, order or authorization of, or registration, declaration or filing with, or notice to, any governmental entity is required by or with respect to Viewbix in connection with the execution and delivery of this Agreement by Viewbix or the consummation by Viewbix, as the case may be, of any of the transactions contemplated by this Agreement.

 

Section 2.05 Company Reports. Since January 1, 2023, Viewbix has filed all forms, reports and documents with the U.S. Securities and Exchange Commission (“SEC”) that have been required to be filed by it under applicable laws prior to the date hereof (all such forms, reports and documents, together with all documents filed or furnished on a voluntary basis and all exhibits and schedules thereto, the “Viewbix Reports”). As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such amended or superseded filing), (i) each Viewbix Report complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act, and/or the Sarbanes-Oxley Act, as the case may be, each as in effect on the date such Viewbix Report was filed, and (ii) each Viewbix Report did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. To the knowledge of Viewbix, none of the Viewbix Reports is the subject of ongoing SEC review or investigation. The financial statements included in the Viewbix Reports comply in all material respects with the applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. The financial statements included in the Viewbix Reports have been prepared in accordance with generally accepted accounting principles in the United States applied on a consistent basis (“GAAP”), and fairly represent the financial position of Viewbix and as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments and the omission of certain footnotes. Except as set forth in the Viewbix Reports, Viewbix has no liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be set forth on a balance sheet of Viewbix or in the notes thereto. As of the Closing, all liabilities of Viewbix shall have been paid off and shall in no event remain liabilities of Viewbix following the Closing, other than immaterial liabilities that will be scheduled prior to the Closing Date.

 

Section 2.06 Litigation. There is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending against or, to the knowledge of Viewbix, threatened against Viewbix. Viewbix is not subject to any order, writ, judgment, injunction, decree or award of any court or any governmental authority.

 

Section 2.07 Compliance. Viewbix has not been advised, nor does Viewbix have reason to believe, that it is not conducting its business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting its business.

 

Section 2.08 Material Agreements. All material agreements to which Viewbix is a party are included as part of or specifically identified in the Viewbix Reports to the extent required by the rules and regulations of the SEC as in effect at the time of filing (“Viewbix Material Agreements”). Except for the Viewbix Material Agreements, Viewbix has no material contracts. To Viewbix’ Knowledge, neither Viewbix nor any other party to the Viewbix Material Agreements, is in breach of or default under any of such contracts.

 

 

Section 2.9 Taxes. Except as disclosed in the Viewbix Reports or as set forth in Schedule 2.9, Viewbix has filed all necessary federal, state and foreign income and franchise tax returns and has paid or accrued all taxes shown as due thereon, and Viewbix has no knowledge of a tax deficiency which has been or might be asserted or threatened against it.

 

Section 2.10 Conformity of Descriptions. The Viewbix Exchange Shares, when issued, will conform in all material respects to the descriptions of Viewbix’ shares of common stock contained in the Viewbix Reports and other filings with the SEC.

 

Section 2.11 Disclosure Controls. Viewbix has disclosure controls and procedures (as defined in Rule 13a-15 under the Securities Exchange Act of 1934, as amended) that are designed to ensure that material information relating to Viewbix is made known to Viewbix’ principal executive officer and Viewbix’ principal financial officer or persons performing similar functions.

 

Section 2.12 Acquisition of Metagramm Capital Stock for Investment.

 

(a) Purchase Entirely for Own Account. Metagramm Exchange Shares proposed to be acquired by Viewbix hereunder will be acquired for investment for Viewbix’ own account and not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and Viewbix has no present intention of selling, granting any participation in or otherwise distributing the Metagramm Exchange Shares, except in compliance with applicable securities laws. Viewbix further represents that it does not have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participation to such Person with respect to the Metagramm Exchange Shares. For purposes of this Agreement, “Person” means any individual, partnership, corporation, association, joint stock company, trust, joint venture, unincorporated organization or governmental entity (or any department, agency or political subdivision thereof) or other entity.

 

(b) Viewbix (i) can bear the economic risk of its investment and (ii) possesses such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in Metagramm and its securities.

 

(c) Viewbix understands that the Metagramm Exchange Shares will be issued pursuant to an exemption from the requirement to provide Viewbix with a prospectus and as a result (i) certain protections, rights and remedies provided by the Securities Law, 5728-1968 (the “Securities Law”), including statutory rights of rescission and certain statutory remedies against an issuer, auditors, directors and officers that are available to investors who acquire securities offered by a prospectus, will not be available to Viewbix, (ii) the Securities Law may not provide investors with an adequate remedy in the event that they suffer investment losses in connection with securities acquired in a private placement, (iii) Viewbix may not receive information that would otherwise be required to be given under the Securities Law, and (iv) Metagramm is relieved from certain obligations that would otherwise apply under the Securities Law. The certificates or direct registration system ownership statement representing the Metagramm Exchange Shares issued to Viewbix shall be endorsed with the following legends, in addition to any other legend required to be placed thereon by applicable securities laws:

 

“THE SECURITIES REPRESENTED HEREBY ARE NOT TRADED ON THE TEL-AVIV STOCK EXCHANGE OR ANY OTHER SECURITIES EXCHANGE OR MARKET AND MAY ONLY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR HYPOTHECATED IN A TRANSACTION CONCERNING WHICH THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH TRANSACTION IS NOT IN CONTRAVENTION OF APPLICABLE SECURITIES LAWS. THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR IN COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.”

 

 

(d) Viewbix acknowledges that neither Metagramm nor any of its directors, employees, officers, affiliates or agents has made any written or oral representations (i) that any person will resell or repurchase the Metagramm Exchange Shares, (ii) that any person will refund all or any part of the consideration paid by Viewbix for the Metagramm Exchange Shares, (iii) as to the future price or value of the Metagramm Exchange Shares, or (iv) there are risks associated with the purchase of the Metagramm Exchange Shares and no securities commission, agency, governmental authority, regulatory body, stock exchange or similar authority has reviewed or passed on the merits of the Metagramm Exchange Shares or made any recommendations or endorsement with respect to the Metagramm Exchange Shares.

 

(e) Viewbix acknowledges that it has carefully reviewed such information as it has deemed necessary to evaluate an investment in Metagramm and its securities. To the full satisfaction of Viewbix, it has been furnished all materials that it has requested relating to Metagramm and the issuance of the Metagramm Exchange Shares hereunder.

 

(f) Viewbix acknowledges that the Metagramm Exchange Shares have not been and will not be registered under the Securities Act or the securities laws of any state of the United States and that the Metagramm Exchange Shares may not be offered, pledged, sold, assigned or otherwise transfered, directly or indirectly, to, or for the account or benefit of, a person in the United States or a U.S. person without registration under the Securities Act and applicable state securities laws or compliance with the requirements of an exemption from such registration, and it acknowledges that Metagramm has no present intention of filing or obligation to file a registration statement under the Securities Act or applicable state securities laws in respect of the issuance or resales of such securities. “United States” and “U.S. person” have the respective meanings assigned to such terms in Rule 902 of Regulation S (“Regulation S”) under the Securities Act.

 

Section 2.13 Additional Financing. Viewbix is aware that: (i) Metagramm may complete additional financings in the future in order to develop its business and to fund its ongoing development; (ii) there is no assurance that such financings will be available and, if available, on reasonable terms; (iii) any such future financings may have a dilutive effect on Metagramm’s securityholders, including Viewbix; and (iv) if such future financings are not available, Metagramm may be unable to fund its on-going development and the lack of capital resources may result in the failure of Metagramm’s business.

 

Section 2.14 Disclosure. All disclosure provided to Metagramm regarding Viewbix, its business and the transactions contemplated hereby, including the exhibits to this Agreement, furnished by Viewbix with respect to the representations and warranties made herein are true and correct with respect to such representations and warranties and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.

 

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF METAGRAMM

 

Metagramm represents and warrants to Viewbix that, as of the date hereof, except for those representations and warranties that speak of a different date:

 

Section 3.01 Metagramm Exchange Shares. The Metagramm Exchange Shares shall represent 19.99% of the issued and outstanding share capital of Metagramm as of the Closing Date (as of immediately prior to the Closing).

 

Section 3.02 Organization, Standing and Corporate Power of Metagramm. Metagramm is duly incorporated, validly existing and in good standing under the laws of Israel with respect to the filing of annual reports with the Registrar of Companies of Israel and has the requisite corporate power and authority to own, lease and operate its properties and other assets and to carry on its business as now being conducted. Metagramm is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed (individually or in the aggregate) would not have a Material Adverse Effect with respect to the Company.

 

 

Section 3.03 Capital Structure. The authorized share capital of Metagramm consists of 10,000,000 common shares with par value of NIS 0.001 each, of which 666,643 shares are issued and outstanding as of the date hereof. Except as disclosed in Schedule 3.03(a), there are no outstanding bonds, debentures, notes or other indebtedness or other securities of Metagramm having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters of which stockholders of Metagramm are entitled to vote on. Except as disclosed in Schedule 3.03(b), there are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which Metagramm is a party or by which it is bound obligating Metagramm to issue, deliver or sell, or cause to be issued, delivered or sold, additional common stock of Metagramm or other equity or voting securities of Metagramm or obligating Metagramm to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. There are no outstanding contractual obligations, commitments, understandings or arrangements of Metagramm to repurchase, redeem or otherwise acquire or make any payment in respect of any common stock of Metagramm or any other securities of Metagramm. There are no agreements or arrangements pursuant to which Metagramm is or could be required to register Metagramm’s common stock or other securities under the Securities Act or other agreements or arrangements with or among any holders of Metagramm or with respect to any securities of Metagramm. The issuance of the Metagramm Exchange Shares will not trigger any anti-dilution rights of any existing securities of Metagramm. The Metagramm Exchange Shares will, at the time of issue, be duly allotted, validly issued, fully paid and non-assessable and will be free of all liens, charges and encumbrances.

 

Section 3.04 Authority; Non-Contravention. Metagramm has all requisite authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The individual signing this Agreement on behalf of Metagramm has been duly authorized by Metagramm to do so. The execution and delivery of this Agreement by Metagramm and the consummation by Metagramm of the transactions contemplated by this Agreement have been (or at Closing will have been) duly authorized by all necessary corporate action on the part of Metagramm. This Agreement has been duly executed and delivered by and constitutes a valid and binding obligation of Metagramm, enforceable in accordance with its terms. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated by this Agreement and compliance with the provisions of this Agreement will not, conflict with, or result in any breach or violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of or “put” right with respect to any obligation or to loss of a material benefit under, or result in the creation of any lien upon any of the properties or assets of Metagramm under, (i) the charter documents of Metagramm, (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to Metagramm or their respective properties or assets, or (iii) subject to the governmental filings and other matters referred to in the following sentence, any judgment, order, decree, statute, law, ordinance, rule, regulation or arbitration award applicable to Metagramm or their respective properties or assets, other than, in the case of clauses (ii) and (iii), any such conflicts, breaches, violations, defaults, rights, losses or liens that individually or in the aggregate could not have a Material Adverse Effect with respect to the Company or could not prevent, hinder or materially delay the ability of Metagramm to consummate the transactions contemplated by this Agreement. No consent, approval, order or authorization of, or registration, declaration or filing with, or notice to, any governmental entity is required by or with respect to Metagramm in connection with the execution and delivery of this Agreement by Metagramm or the consummation by Metagramm, as the case may be, of any of the transactions contemplated by this Agreement.

 

Section 3.05 Financial Statements; No Undisclosed Liabilities.

 

(a) Except for the Company’s obligation to repay a loan extended to the Company by certain lenders and shareholders, of which is outstanding, in an aggregate amount of NIS1,307 thousands as of July 25, 2024 and as further detailed in Schedule 3.05, Metagramm has no liabilities or obligations, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business, which, individually and in the aggregate, do not exceed US$20,000; (ii) obligations under contracts and commitments incurred in the ordinary course of business; and (iii) liabilities and obligations of a type or nature not required under GAAP to be reflected in its financial statements, which, individually and in the aggregate do not exceed US$10,000.

 

(b) Metagramm is not a guarantor or indemnitor of any debt or obligation of another, nor has Metagramm given any loan, security or otherwise agreed to become liable for any obligation of any person. No person has given any guarantee of, or security for, any obligation of Metagramm. Metagramm did not extend any loans or advances to any person, other than advances for expenses to its employees in the ordinary course of business.

 

 

Section 3.06 Assets and Properties. Metagramm has good and marketable title to all of the tangible or personal properties and assets owned by Metagramm, which are material to the business of Metagramm as currently conducted, and such properties and assets are free and clear of all mortgages, deeds of trust, liens, pledges, charges, security interests, conditional sale agreement, loans and encumbrances, except for statutory liens for the payment of current taxes that are not yet delinquent and encumbrances and liens that arise in the ordinary course of business and do not materially impair Metagramm’s ownership or use of such property or assets. With respect to the tangible property and assets it leases, Metagramm is in compliance in all material respects with such leases and, to its knowledge, holds a valid leasehold or license interest free of any liens, pledges, charges, security interest, claims or encumbrances, other than those of the lessors of such property or assets. Metagramm does not own any real property.

 

Section 3.06 Intellectual Property. Metagramm has, or has rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights for use in connection with their respective businesses and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). Metagramm has not received a notice (written or otherwise) that any of, its material Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement. Metagramm has not received, since January 1, 2020, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe (and will not infringe) upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge Metagramm, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. Metagramm has taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Metagramm has no knowledge of any facts that would preclude it from having valid license rights or clear title to the Intellectual Property Rights. Metagramm has no knowledge that it lacks or will be unable to obtain any rights or licenses to use all Intellectual Property Rights that are necessary to conduct its business. For purposes of this Section, “knowledge”, including the phrase “to Metagramm’s knowledge” (or similar phrases), when used in this Section 3.06 (Intellectual Property) shall mean the actual knowledge of Metagramm, without conducting any patent search, freedom to operate, infringement, or any similar search.

 

Section 3.07 Labor Matters.

 

(a) Metagramm has complied, in all material respects, with all applicable employment laws, policies, procedures and agreements relating to employment, and terms and conditions of employment. Metagramm has paid in full to all of its respective employees and consultants all wages, salaries, commissions, bonuses, benefits and other compensation due and payable to such employees or consultants on or prior to the date of this Agreement. Metagramm has complied in all material respects with the applicable laws relating to the proper withholding and remittance to the proper tax and other authorities of all sums required to be withheld from employees or persons deemed to be employees under applicable laws. To Metagramm’s knowledge, all persons classified by Metagramm as consultants or contractors thereof are correctly classified as such and not as employees for any purpose. Metagramm’s liability for any obligations to pay any amount of severance payment, pension, accrued vacation, and other social benefits and contributions, under applicable law or contract, or any other payment of substantially the same nature, is fully funded by deposit of funds in severance funds, pension funds, managers insurance policies or provident funds (and if not required to be so funded) adequate provisions have been made in Metagramm’s Financial Statements.

 

(b) Metagramm is not a party to, bound by or subject to, and no employee of Metagramm benefits from, any collective bargaining agreement, collective labor agreement, extension orders (tzavei harchava) (other than extension orders that apply to all employees in Israel generally), or other contract or arrangement with a labor union, trade union or other organization or body, to provide benefits or working conditions beyond the minimum benefits and working conditions required by applicable law. No labor union has requested or has sought to represent any of the employees, representatives or agents of Metagramm, nor is Metagramm aware of any labor organization activity involving its employees. There is no strike or other labor dispute involving Metagramm pending or, to Metagramm’s knowledge, threatened.

 

Section 3.08 Litigation. There is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending against or, to the knowledge of Metagramm, threatened against Metagramm. Metagramm is not subject to any order, writ, judgment, injunction, decree or award of any court or any governmental authority.

 

Section 3.09 Compliance. Metagramm has not been advised, nor does Metagramm have reason to believe, that it is not conducting its business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting its business.

 

 

Section 3.10 Material Agreements. All material agreements to which Metagramm is a party are included as part of or specifically identified in Schedule 3.07 (“Metagramm Material Agreements”). Except for the Metagramm Material Agreements, Metagramm has no material contracts. To Metagramm’s Knowledge, neither Metagramm nor any other party to the Metagramm Material Agreements, is in breach of or default under any of such contracts.

 

Section 3.11 Taxes. Metagramm has filed all necessary federal, state and foreign income and franchise tax returns and has paid or accrued all taxes shown as due thereon, and Metagramm has no knowledge of a tax deficiency which has been or might be asserted or threatened against it.

 

Section 3.12 Conformity of Descriptions. The Metagramm Exchange Shares, when issued, will conform in all material respects to the descriptions of Metagramm’s common shares.

 

Section 3.13 Acquisition of Viewbix Capital Stock for Investment.

 

(a) Purchase Entirely for Own Account. Viewbix Exchange Shares proposed to be acquired by Metagramm hereunder will be acquired for investment for Metagramm’s own account and not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and Metagramm has no present intention of selling, granting any participation in or otherwise distributing the Viewbix Exchange Shares, except in compliance with applicable securities laws. Metagramm further represents that it does not have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participation to such Person with respect to the Viewbix Exchange Shares.

 

(b) Metagramm (i) can bear the economic risk of its investment and (ii) possesses such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in Viewbix and its securities.

 

(c) Metagramm understands that the sale of the Viewbix Exchange Shares is not registered under the Securities Act and that the issuance hereof to Metagramm is intended to be exempt from registration under the Securities Act pursuant to Regulation S promulgated thereunder (“Regulation S”). Metagramm is, and on each date on which it exercises any warrants to purchase shares of Viewbix common stock, it will be either (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9) or (a)(12) under the Securities Act or, if not an accredited investor, otherwise meets the suitability requirements of Regulation D and Section 4(a)(2) of the Securities Act; (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act; or (iii) a “non-US person,” as such term is defined in Regulation S and as set forth in Annex A hereto. The certificates representing the Viewbix Exchange Shares issued to Metagramm shall be endorsed with the following legends, in addition to any other legend required to be placed thereon by applicable securities laws:

 

“[NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE] HAS [NOT] BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND NEITHER SUCH SECURITIES [AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY] NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT, AND BASED ON AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THE PROVISIONS OF REGULATION S HAVE BEEN SATISFIED, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (3) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, IN WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES [OR THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY] MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”

 

 

(d) Metagramm acknowledges that neither the SEC, nor the securities regulatory body of any state or other jurisdiction, has received, considered or passed upon the accuracy or adequacy of the information and representations made in this Agreement.

 

(e) Metagramm acknowledges that it has carefully reviewed such information as it has deemed necessary to evaluate an investment in Viewbix and its securities. To the full satisfaction of Metagramm, it has been furnished all materials that it has requested relating to Viewbix and the issuance of the Viewbix Exchange Shares hereunder.

 

(f) Metagramm understands that the Viewbix Exchange Shares may not be sold, transferred, or otherwise disposed of without registration under the Securities Act or an exemption therefrom, and that in the absence of an effective registration statement covering the Viewbix Exchange Shares or any available exemption from registration under the Securities Act, the Viewbix Exchange Shares may have to be held indefinitely and Metagramm further acknowledges that the Viewbix Exchange Shares may not be sold pursuant to Rule 144 promulgated under the Securities Act unless all of the conditions of Rule 144 are satisfied, including, without limitation, Metagramm’s compliance with the reporting requirements under the Exchange Act.

 

(g) Metagramm has conducted its own investigation with respect to Viewbix, its business and the Viewbix Exchange Shares; has received or otherwise had access to all information regarding Viewbix that it believes is necessary or appropriate in connection with the purchase of the Viewbix Exchange Shares, including financial and other information which has been publicly filed by Viewbix with the SEC through EDGAR; (c) has made its own assessment and has satisfied itself concerning the relevant tax, legal, currency and other considerations relevant to its investment in Viewbix; and (d) has such knowledge and experience in financial and business matters in order to evaluate the merits and risks of its prospective investment in Viewbix.

 

(h) Metagramm is an Israeli company, and:

 

(i)

is not a U.S. Person and is not purchasing the Viewbix Exchange Shares for the account of or benefit of a U.S. Person or a person within the United States;

(ii)

was not offered the Viewbix Exchange Shares in the United States;

(iii)

did not execute or deliver this Agreement, in the United States;

(iv)

did not cause any buy order for the Viewbix Exchange Shares to originate in the United States;

(v)

has no intention to distribute either directly or indirectly any of the Viewbix Exchange Shares in the United States, and Metagramm will not offer, sell or otherwise transfer, directly or indirectly, any of the Viewbix Exchange Shares in the United States or to, or for the account or benefit of, a U.S. Person or person in the United States except pursuant to registration under the 1933 Act and the securities laws of all applicable states, or pursuant to available exemptions therefrom;

(vi)

did not receive the offer to purchase the Viewbix Exchange Shares as a result of, nor will it engage in, any directed selling efforts (as defined in Regulation S);

(vii)

is a “non-US person” as defined in Regulation S as promulgated under the Securities Act.

Section 3.15 Additional Legend; Consent. Additionally, the Viewbix Exchange Shares will bear any legend required by the “blue sky” laws of any state to the extent such laws are applicable to the securities represented by the certificate so legended and Metagramm consents to Viewbix making a notation on its records or giving instructions to any transfer agent of the Viewbix Exchange Shares in order to implement the restrictions on transfer of the Viewbix Exchange Shares.

 

 

Section 3.16 Disclosure. All disclosure provided to Viewbix regarding Metagramm, its business and the transactions contemplated hereby, including the exhibits to this Agreement, furnished by Metagramm with respect to the representations and warranties made herein are true and correct with respect to such representations and warranties and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.

 

ARTICLE IV

COVENANTS

 

Section 4.01 Securities Law Compliance. Each of Viewbix and Metagramm understand and agree that the consummation of this Agreement, including the issuance of the Viewbix Exchange Shares to Metagramm in exchange for the issuance of the Metagramm Exchange Shares to Viewbix upon Closing as contemplated hereby, constitutes the offer and sale of securities under the Securities Act, and applicable state statutes. Each of Viewbix and Metagramm agree that such transactions shall be consummated in reliance on exemptions from the registration requirements of such laws, which depend, among other items, on the circumstances under which such securities are acquired. Furthermore, in connection with the transactions contemplated by this Agreement, Viewbix and Metagramm shall each file, with the assistance of the other and their respective legal counsel, such notices, applications, reports or other instruments as may be deemed by them to be necessary or appropriate in an effort to document reliance on, as applicable, registration and prospectus exemptions, all to the extent and in the manner as may be deemed by the Parties to be appropriate.

 

Section 4.02 Access to Information; Confidentiality.

 

(a) The Parties hereto shall, and shall cause its officers, employees, counsel, financial advisors and other representatives to, afford to any other party and its representatives reasonable access during normal business hours during the period prior to the Closing Date of the Agreement to its properties, books, contracts, commitments, personnel and records and, during such period, the parties shall, and shall cause each of its officers, employees and representatives to, furnish promptly to any other party all information concerning its business, properties, financial condition, operations and personnel as such other party may from time to time reasonably request. For the purposes of determining the accuracy of the representations and warranties of each Party set forth herein and compliance by each Party of its obligations hereunder, during the period prior to the Closing Date of the Exchange, each party shall provide each other party and its representatives with reasonable access during normal business hours to its properties, books, contracts, commitments, personnel and records as may be necessary to enable each party to confirm the accuracy of the representations and warranties of each other party set forth herein and compliance by each party of their obligations hereunder, and, during such period, cause its, officers, employees and representatives to, furnish promptly to each party upon its request (i) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities laws and (ii) all other information concerning its business, properties, financial condition, operations and personnel as such other party may from time to time reasonably request. Except as required by law, each party will hold, and will cause its respective directors, officers, employees, accountants, counsel, financial advisors and other representatives to hold, any nonpublic information concerning another party in strict confidence.

 

(b) No investigation pursuant to this Section shall affect any representations or warranties of the parties herein or the conditions to the obligations of the parties hereto.

 

Section 4.03 Commercially Reasonable Best Efforts. Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its commercially reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Exchange and the other transactions contemplated by this Agreement. The Parties hereto will use their commercially reasonable best efforts and cooperate with one another (i) in promptly determining whether any filings are required to be made or consents, approvals, waivers, permits or authorizations are required to be obtained (or, which if not obtained, would result in an event of default, termination or acceleration of any agreement or any put right under any agreement) under any applicable law or regulation or from any governmental authorities or third parties in connection with the transactions contemplated by this Agreement, and (ii) in promptly making any such filings, in furnishing information required in connection therewith and in timely seeking to obtain any such consents, approvals, permits or authorizations. The Parties hereto shall mutually cooperate in order to facilitate the achievement of the benefits reasonably anticipated from the Exchange.

 

 

Section 4.04 Valid Issuances. Each of Viewbix and Metagramm covenant and agree that upon issuances, all of the Exchange Shares issued pursuant to this Agreement shall be duly authorized, validly issued, fully paid and nonassessable.

 

Section 4.05 Further Assurances. Subject to the terms and conditions herein provided, each Party shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective this Agreement and the transactions contemplated herein.

 

ARTICLE V

MISCELLANEOUS

 

Section 5.1 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement, shall be governed by the internal laws of the State of Israel, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdictions other than the State of Israel. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of Israel, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, 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 to such Party at the address for such 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.

 

Section 5.2 Notices. All notices or other communications required or permitted by this Agreement shall be in writing and addressed as follows:

 

	If to Viewbix:	Attn: Amihay Hadad
		Address: 3 Hanehoshet St, Building B, 7th floor Tel Aviv, Israel 6971068
		Tel: +972-53-6666611
		Email: amihay@gix-internet.com
	If to Metagramm:	Attn: Amit Greener
		Address: 6 Erez St., Even Yehuda, Israel
		Tel: +972-54-8138873
		Email: amit.greener@gmail.com>

 

or such other addresses as shall be furnished in writing by any Party in the manner for giving notices hereunder.

 

Notice shall be deemed to have been duly received: (a) if given email, when transmitted and the appropriate confirmation received, as applicable, if transmitted on a business day and during normal business hours of the recipient, and otherwise on the next business day following transmission; (b) if given by certified or registered mail, return receipt requested, postage prepaid, three business days after being deposited in the U.S. mail; and (c) if given by courier, messenger or other means, when received or personally delivered and, in any such case, addressed as indicated herein, or to such other addresses as may be specified by any Party to the other Parties pursuant to notice given by such Party in accordance with the provisions of this Section 5.03.

 

Section 5.3 Attorneys Fees. In the event that any Party institutes any action or suit to enforce this Agreement or to secure relief from any default hereunder or breach hereof, the prevailing Party shall be reimbursed by the losing Party for all costs, including, without limitation, reasonable attorneys’ fees, incurred in connection therewith and in enforcing or collecting any judgment rendered therein.

 

Section 5.4 Third Party Beneficiaries. This contract is strictly between Viewbix and Metagramm and, except as specifically provided, no other Person shall be deemed to be a third party beneficiary of this Agreement.

 

 

Section 5.5 Expenses. Each Party shall bear the expenses, including legal, accounting and professional fees, incurred in connection with this Agreement and any other agreements in connection therewith, the Exchange or any of the other transactions contemplated hereby.

 

Section 5.6 Entire Agreement. This Agreement and the related documents referenced herein represent the entire agreement between the Parties relating to the subject matter hereof, and supersedes all prior agreements, understandings and negotiations, written or oral, with respect to such subject matter.

 

Section 5.7 Survival; Termination. The representations, warranties and covenants of the respective Parties shall survive the consummation of the transactions herein contemplated for a period of two years.

 

Section 5.8 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together shall be but a single instrument. Signatures delivered by email shall be deemed original signatures.

 

Section 5.9 Amendment or Waiver. Every right and remedy provided herein shall be cumulative with every other right and remedy, whether conferred herein, at law or in equity, and may be enforced concurrently therewith, and no waiver by any Party of the performance of any obligation by the other shall be construed as a waiver of the same or any other default then, theretofore or thereafter occurring or existing. This Agreement may by amended by a writing signed by all Parties, with respect to any of the terms contained herein, and any term or condition of this Agreement may be waived or the time for performance may only be extended by a writing signed by the Party or Parties for whose benefit the provision is intended.

 

[Signature pages follow]

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above.

 

	VIEWBIX, INC.
	By
	Name:	Amihay Hadad
	Title:	Chief Executive Officer
	METAGRAMM Software ltd.
	By:
	Name:	Amit Greener
	Title:	Chief Executive Officer

 

[Signature page to Securities Exchange Agreement]

 

 

SCHEDULE 3.05(a)

 

Outstanding liabilities pursuant to certain loan agreements between the Company and its shareholders, in accordance with the trail balance as of July 25, 2024:

 

	1.	Xylo Technologies Ltd. (f/k/a Medigus ltd.) – NIS 922 thousand.
	2.	L.I.A Pure Capital Ltd. – NIS 185 thousand
	3.	Itay Maroz – NIS 40 thousand
	4.	Eliyahu Zamir – NIS 40 thousand
	5.	Ron Yair Peled – NIS 40 thousand
	6.	Amit Greener – NIS 40 thousand

 

SCHEDULE 3.03(a)

 

Outstanding bonds, debentures, notes or other indebtedness or other securities of Metagramm having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters of which stockholders of Metagramm are entitled to vote on:

 

1.

Metagramm has made a verbal commitment to its Chief Technologies Officer pursuant to the grant of options to purchase shares thereof, constituting 5% of its issued and outstanding share capital.

 

SCHEDULE 3.03(b)

 

Securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which Metagramm is a party or by which it is bound obligating Metagramm to issue, deliver or sell, or cause to be issued, delivered or sold, additional common stock of Metagramm or other equity or voting securities of Metagramm or obligating Metagramm to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking:

 

	1.	Medigus Ltd. has the right to be issued with additional Metagramm’s shares in accordance with the terms of its investment agreement in Metagramm, as amended.
	2.	Metagramm has made a verbal commitment to its Chief Technologies Officer pursuant to the grant of options to purchase shares thereof, constituting 5% of its issued and outstanding share capital …

 

SCHEDULE 3.05

 

Metagramm’s Liabilities (other than the liabilities exempted from disclosure as set forth in Section 3.05 of the Agreement): N/A

 

SCHEDULE 3.07

 

Metagramm’s Material Agreements

 

	1.	Agreement between the Company, Medigus Ltd., and several other parties, as amended, pursuant to an investment, the transfer of Meidgus Ltd.’s tradable securities, and an extension of a loan to the Company by Medigus Ltd, dated April 2nd, 2023. Pursuant to this agreement, the Company has active pledge on certain receivables pursuant to the receipt of funds.
	2.	Assignment of Intellectual Property Rights Agreement between the Company and Tectona Ltd., dated January 10th, 2023.
	3.	Asset Purchase Agreement between the Company and Tetctona Ltd., dated January 10th, 2023.
	4.	Founders Agreement, dated February 23rd, 2022.
	5.	Share Repurchase Agreement between the Company and Amit Greener, dated February 23rd, 2023.

 

 

ANNEX A

 

Regulation S Questionnaire

 

The information contained herein is being furnished to the Company in order for the Viewbix Inc. (the “Company”) to determine whether the undersigned’s receipt of the Company’s common stock (the “Securities”) in connection with an exchange of common stock with the Company may be accepted pursuant to Rule 903 of Regulation S promulgated under the Securities Act of 1933, as amended (the “Securities Act”). The undersigned understands that (i) the Company will rely upon the following information for purposes of complying with Federal and applicable state securities laws, (ii) the Securities will not be registered under the Securities Act in reliance upon the exemption from registration provided by Rule 903 of Regulation S of the Securities Act, and (iii) this representation letter is not an offer to sell nor the solicitation of an offer to buy any Securities, or any other securities, to the undersigned. Capitalized terms used herein but not otherwise defined shall have the meanings assigned to them in that certain Securities Exchange Agreement dated March 31 2023, by and among the undersigned and the Company (the “Agreement”).

 

1.

At the time of (a) the offer by the Company and (b) the acceptance of the offer by such person or entity, of the Securities, such person or entity was outside the United States.

 

2.

Such person or entity is acquiring the Securities for such Purchaser’s own account, for investment and not for distribution or resale to others and is not purchasing the Securities for the account or benefit of any U.S. person, or with a view towards distribution to any U.S. person, in violation of the registration requirements of the Securities Act.

 

3.

Such person or entity will make all subsequent offers and sales of the Securities either (x) outside of the United States in compliance with Regulation S; (y) pursuant to a registration under the Securities Act; or (z) pursuant to an available exemption from registration under the Securities Act. Specifically, such person or entity will not resell the Securities to any U.S. person or within the United States prior to the expiration of a period commencing on the Closing Date and ending on the date that is one year thereafter (the “Distribution Compliance Period”), except pursuant to registration under the Securities Act or an exemption from registration under the Securities Act.

 

4.

Such person or entity has no present plan or intention to sell the Securities in the United States or to a U.S. person at any predetermined time, has made no predetermined arrangements to sell the Securities and is not acting as a distributor of such securities.

 

5.

Neither such person or entity, its affiliates nor any person acting on behalf of such person or entity, has entered into, has the intention of entering into, or will enter into any put option, short position or other similar instrument or position in the U.S. with respect to the Securities at any time after the Closing Date through the Distribution Compliance Period except in compliance with the Securities Act.

 

6.

Such person or entity consents to the placement of a restrictive legend on any certificate or other document evidencing the Securities, relating to the fact that the Securities are not registered under the Securities Act.

 

7.

Such person or entity is not acquiring the Securities in a transaction (or an element of a series of transactions) that is part of any plan or scheme to evade the registration provisions of the Securities Act.

 

8.

Such person or entity has sufficient knowledge and experience in finance, securities, investments and other business matters to be able to protect such person’s or entity’s interests in connection with the transactions contemplated by the Agreement.

 

9.

Such person or entity has consulted, to the extent that it has deemed necessary, with its tax, legal, accounting and financial advisors concerning its investment in the Securities.

 

10.

Such person or entity understands the various risks of an investment in the Securities and can afford to bear such risks for an indefinite period of time, including, without limitation, the risk of losing its entire investment in the Securities.

 

 

11.

Such person or entity has had access to the Company’s publicly filed reports with the Securities and Exchange Commission and has been furnished with all other public information regarding the Company that such person or entity has requested and all such public information is sufficient for such person or entity to evaluate the risks of investing in the Securities.

 

12.

Such person or entity has been afforded the opportunity to ask questions of and receive answers concerning the Company and the terms and conditions of the issuance of the Securities.

 

13.

Such person or entity is not relying on any representations and warranties concerning the Company made by the Company or any officer, employee or agent of the Company, other than those contained in the Agreement.

 

14.

Such person or entity will not sell or otherwise transfer the Securities unless either (A) the transfer of such securities is registered under the Securities Act or (B) an exemption from registration of such securities is available.

 

15.

Such person or entity understands and acknowledges that the Securities have not been recommended by any federal or state securities commission or regulatory authority, that the foregoing authorities have not confirmed the accuracy or determined the adequacy of any information concerning the Company that has been supplied to such person or entity and that any representation to the contrary is a criminal offense.

 

Date: July 30, 2024
Metagramm Software Ltd.
(Signature of Authorized Signatory)
Amit Greener
(Name of Authorized Signatory)
CEO
(Title)

 

 

 

Exhibit 10.2

 

SECOND AMENDMENT TO LOAN AGREEMENT

 

This second Amendment (the “Amendment”) to that certain Facility Agreement (“Facility Agreement”) dated July 4, 2024, as amended on July 22, 2024 (the “Effective Date”), by and between Viewbix Inc., a Delaware corporation (the “Borrower”), and Capitalink Ltd., an Israeli limited company (the “Lender”), is entered into effect as of July 25, 2024 (the “Amendment Effective Date”).

 

Unless otherwise defined, capitalized terms used herein shall have the meanings ascribed to them in the Facility Agreement.

 

The Lender and the Borrower agree to amend the Facility Agreement, as set forth below, effective as of the Amendment Effective Date:

 

1.	Amendment.

 

1.1. Section 6 of the Facility Agreement shall be replaced in its entirety with the following:

 

The Facility Loan Amount will remain available until the earlier of (a) such date that the Loan Amount has been drawn down in full (in accordance with the schedule set forth in the recitals) or (b) the thirty six (36) month anniversary of the date hereof, or (c) upon such date that the Company completes the Two Million Fundraise (the “Term”). In the event the Term lapses, the Loan Amount shall be repaid to the Lender immediately thereafter.

 

2.	Miscellaneous.

 

2.1 Effective Date. This Amendment shall enter into effect as of the Amendment Effective Date.

 

2.2 No Further Amendments. Each of the Lender and the Borrower acknowledges and agrees that, except for the changes set forth herein, the provisions of the Facility Agreement remains unchanged and in full force and effect.

 

2.3 Counterparts. This Amendment may be executed in any number of counterparts, by scanned copy or original signature, each of which shall be deemed an original and enforceable against the party actually executing such counterpart, and all of which together shall constitute one and the same instrument.

 

[Remainder of the Page Intentionally Left Blank]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered on and as of the Amendment Effective Date.

 

Lender:			Borrower:
Viewbix Inc.			Capitalink Ltd.
By:			By:
Name:			Name:
Title:			Title:

 

[Signature Page- Facility Agreement Amendment]

 

 

 

Exhibit 10.3

 

FACILITY AGREEMENT 

 

This Facility Agreement is made as of July 28, 2024 (the “Agreement Date”) between M.R.M Merhavit Holding and Management Ltd. (the “Lender”), on behalf of itself and on behalf of such lenders set forth in Schedule A, and Viewbix Inc., a Delaware corporation (the “Borrower” or the “Company”) (the Borrower together with the Lender, the “Parties” and individually “Party”).

 

WHEREAS,	the Borrower is a corporation quoted on the OTC Market, Pink Tier;
WHEREAS,	the Borrower desires to receive funding equal to an aggregate amount of USD 3,000,000 (three million), whereby (a) an aggregate of USD 80,000 (eighty thousand) shall be drawn down immediately upon the Effective Date (the “First Drawdown Amount”), (b) an aggregate of USD 80,000 (eighty thousand) shall be drawn down upon the effectiveness of the Uplist (the “Second Drawdown Amount”), and (c) following the Uplist, an aggregate of USD 80,000 (eighty thousand) may be drawn down on a monthly basis until the Loan Amount shall be exhausted (each, a “Post-Uplist Drawdown Amount”, each, a “Drawdown”), together with the First Drawdown Amount and Second Drawdown Amount, the “Loan Amount”);
WHEREAS,	USD 320,000 of the Loan Amount, which sum shall represent the First Drawdown Amount, the Second Drawdown Amount, and the first two drawdowns included in the Post-Uplist Drawdown Amount, shall be provided by the Lender B, as set forth in Schedule A, and, accordingly, Lender B shall be entitled to such rights in relation to the First Drawdown Amount and the Second Drawdown Amount pursuant to Section 9 herein (“Conversion”); and
WHEREAS,	the Parties wish to set forth in this Agreement the terms and conditions of the Loan (as defined below) and to determine their mutual rights and obligations.

 

Now, Therefore, the parties hereto hereby agree as follows:

 

1.	Preamble and Definitions

 

1.1.

The Preamble to this Agreement and all Schedules hereto shall constitute an integral part of this Agreement.

 

1.2.

In this Agreement, including the Schedules hereto, the following terms shall have the meanings set out opposite them below:

 

	“Agreement”	–	Means this Agreement and all its Exhibits and Schedules.
	“Business Day”	–	Means a day (other than a Friday, Saturday and an official holiday) on which banks are generally open for business in Israel.
	“Effective Date”	–	Means the Agreement Date.
	“Fundraise”	–	Means the completion by the Company of equity investment(s) in the Company (in one or more rounds or transactions, including by means of warrant(s)/option(s) cash exercise, to be consummated following the Effective Date) totaling an aggregate amount of Two Million and Five Hundred Thousand US Dollars (USD 2,500,000).

 

	“Interest”	–	Means as set forth in Section 5 herein.
	“Uplist”	–	Means the effective date of the Company’s uplist of its common stock to a national exchange (e.g., Nasdaq or NYSE).

 

1.3.

Interpretation

 

In this Agreement, unless the contrary intention appears, a reference to:

 

	1.3.1.	a Section, Clause, a Sub-clause or a Schedule is a reference to a section, clause or sub-clause of, or a schedule to, this Agreement;
	1.3.2.	a Party or any other person/entity includes its successors in title, permitted assignees and permitted transferees;
	1.3.3.	the headings in this Agreement do not affect its interpretation; and
	1.3.4.	any dispute of interpretation in relation to any clause set forth in the Agreement shall be interpreted in accordance with and in the context of the Purpose.

 

2.

Representations and Warranties of the Borrower

 

The Borrower hereby represents, covenants and warrants to the Lender as follows:

 

2.1.

The Borrower is a company duly organized, validly existing under the laws of the State of Delaware.

 

2.2.

The Borrower has the corporate power to enter into, perform and deliver, and has taken all necessary actions to authorize the entry into, performance and delivery of, the Agreement and all its Exhibits and Schedules, and to carry on its business as now being conducted.

 

2.3.

The entry into this Agreement by the Borrower does not conflict with: (i) any Applicable Law; or (b) the charter documents of the Company.

 

2.4.

No consent, approval, order or authorization of any third party, or registration, qualification, designation, declaration or filing with governmental authority is required on the part of the Borrower in connection with the consummation of the transactions contemplated by this Agreement.

 

2.5.

The authorized share capital of Borrower consists of (i) 490,000,000 common stock, par value USD 0.0001 per share (“common stock”), of which 18,839,686 shares of common stock are issued and outstanding as of the Agreement Date, and (ii) 10,000,000 preferred common stock, par value USD 0.0001 per share, of which zero shares of preferred stock are outstanding as of the Agreement Date. Except as disclosed in the Company Reports: (i) there are no outstanding bonds, debentures, notes or other indebtedness or other securities of Borrower having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of Borrower; (ii) there are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which Borrower is a party or by which it is bound obligating Borrower to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of common stock of Borrower or other equity or voting securities of Borrower or obligating Borrower to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking; (iii) there are no outstanding contractual obligations, commitments, understandings or arrangements of Borrower to repurchase, redeem or otherwise acquire or make any payment in respect of any shares of common stock of Borrower or any other securities of Borrower; (iv) there are no agreements or arrangements pursuant to which Borrower is or could be required to register Borrower’s shares of common stock or other securities under the Securities Act (as defined below) or other agreements or arrangements with or among any holders of Borrower or with respect to any securities of Borrower; and (v) the issuance of the Shares (as defined below) will not trigger any anti-dilution rights of any existing securities of Borrower. Except as disclosed in the Company Reports, as of the Effective Date, there will be no rights, subscriptions, warrants, options, conversion rights, or agreements of any kind outstanding to purchase from Borrower, or otherwise require Borrower to issue, any shares of share capital of Borrower or securities or obligations of any kind convertible into or exchangeable for any shares of common stock of Borrower.

 

 

2.6.

Since January 1, 2022, Borrower has filed all forms, reports and documents with the Securities and Exchange Commission (the “SEC”) that have been required to be filed by it under applicable laws prior to the date hereof (all such forms, reports and documents, together with all documents filed or furnished on a voluntary basis and all exhibits and schedules thereto, the “Company Reports”). As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such amended or superseded filing), (i) each Company Report complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act, and/or the Sarbanes-Oxley Act, as the case may be, each as in effect on the date such Company Report was filed, and (ii) each Company Report did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. To the knowledge of the Borrower, none of the Company Reports is the subject of ongoing SEC review or investigation. The financial statements included in the Company Reports comply in all material respects with the applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. The financial statements included in the Company Reports have been prepared in accordance with generally accepted accounting principles in the United States applied on a consistent basis (“GAAP”), and fairly represent the financial position of Borrower and as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments and the omission of certain footnotes. Except as set forth in the Company Reports, Borrower has no liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be set forth on a balance sheet of Borrower or in the notes thereto.

 

2.7.

Other then as disclosed in its Company Reports, there is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending against or, to the knowledge of Borrower, threatened against Borrower. Borrower is not subject to any order, writ, judgment, injunction, decree or award of any court or any governmental authority.

 

2.8.

Borrower has not been advised, nor does Borrower have reason to believe, that it is not conducting its business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting its business.

 

 

2.9.

The Shares (as defined below), when issued (if applicable), will conform in all material respects to the descriptions of Borrower’s common stock contained in the Company Reports and other filings with the SEC.

 

2.10.

Borrower has disclosure controls and procedures (as defined in Rule 13a-15 under the Securities Exchange Act of 1934, as amended) that are designed to ensure that material information relating to Borrower is made known to Borrower’s principal executive officer and Borrower’s principal financial officer or persons performing similar functions.

 

2.11.

All disclosure provided to Lender regarding Borrower, its business and the transactions contemplated hereby, including the exhibits to this Agreement, furnished by Borrower with respect to the representations and warranties made herein are true and correct with respect to such representations and warranties and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.

 

2.12.

This Agreement has been duly executed and delivered by and constitutes a valid and binding obligation of Borrower, enforceable in accordance with its terms.

 

3.	Representations and Warranties of the Lender

 

The Lender hereby represents, covenants and warrants to the Borrower as follows:

 

3.1.

The Lender, and any additional persons and/or entities that may provide funds under this Agreement solely by and through the Lender (the “Additional Persons”), is an “Accredited Investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”), and to support its classification as an Accredited Investor, Lender shall sign and deliver to Borrower the declaration in the form attached hereto as Schedule 3.

 

4.	Loan Drawdowns

 

The Borrower shall draw down the First Drawdown Amount, Second Drawdown Amount and each Post-Uplist Drawdown Amount in accordance with the schedule set forth in the recitals of this Agreement, whereby such Loan Amounts shall be deposited directly by the Lender into the Company’s bank account detailed in Schedule 4.1 hereto and the Lender shall deliver to the Borrower a wire confirmation thereof upon the Effective Date.

 

5.

Interest

 

Interest shall accrue on the Loan Amount at a rate of 12% (twelve percent) per annum (“Interest”). Interest accrued on the Loan Amount upon the first anniversary of the Effective Date shall be repaid to the Lender and Lender B in advance on the Effective Date in the form (a) shares of common stock of the Company at a conversion rate of USD 0.25 (twenty five cents), on a pre-reverse split basis, for each USD of Interest accrued on the Loan Amount and (b) a warrant in the form attached hereto as Annex 0 to purchase such number of shares of common stock issuable pursuant to (a), such that, pursuant to this Section 5, the Lender shall be entitled to receive 1,363,200 shares of common stock on a pre-reverse split basis and a warrant to purchase 1,363,200 shares of common stock on a pre-reverse split basis and Lender B shall be entitled to receive 76,800 shares of common stock on a pre-reverse split basis and a warrant to purchase 76,800 shares of common stock on a pre-reverse split basis. As of the second year anniversary of the Effective Date and onward, Interest will be paid for each lapsed year in cash, for each Drawdown actually utilized by the Borrower.

 

 

6.

Term

 

The Facility Loan Amount will remain available until the earlier of (a) such date that the Loan Amount has been drawn down in full (in accordance with the schedule set forth in the recitals) or (b) the forty (40) month anniversary of the date hereof, or (c) upon such date that the Company completes the Fundraise (the “Term”). In the event the Term lapses, the Loan Amount shall be repaid to the Lender immediately thereafter.

 

7.

Taxes

 

Any tax consequences arising from the grant or repayment of the Loan Amount, shall be borne solely by the Lender. Borrower is allowed to withhold tax at source from any repayment it shall pay to the Lender pursuant to applicable law, unless Borrower has provided it with a valid tax exemption issued by the Israeli Tax Authority or other applicable tax authority providing otherwise.

 

8.

Priority

 

The outstanding debt under the Loan Amount shall be subordinate to such other debt of the Borrower as of the date hereof.

 

9.	Conversion

 

Immediately following the effectiveness of the Uplist, the First Loan Drawdown Amount and the Second Loan Drawdown Amount shall be automatically converted into shares of the Company’s common stock USD 160,000 (one hundred and sixty thousand US dollars) at a conversion rate of USD 0.25 (twenty five cents) per share of common stock, on a pre-reverse split basis (such amount of shares of common stock converted, the “Convertible Stock”), and such Convertible Stock shall be accompanied by a warrant, in the form attached hereto as Annex 0, to purchase such amount of Convertible Stock, with an exercise price of USD 0.25 (twenty five cents) per share of common stock (the “Warrant”, and together with the Convertible Stock, a “Conversion Unit”, and collectively the “Uplist Conversion”). The remaining Loan Amount outstanding and not converted following the Uplist Conversion shall remain available for the duration of the Term, whereby upon the lapse of the Term, such amount shall be repaid to such Lender in accordance with Section 6 herein.

 

10.	Transfer or Resale

 

10.1.

The Parties further acknowledge and are aware that the shares of common stock issuable pursuant to this Agreement or upon the exercise of the Warrant (collectively, the “Shares”), may only be disposed of in compliance with respective U.S. state and U.S. federal securities laws. In connection with any transfer of Shares other than pursuant to an effective registration statement, the Borrower may require the transferor thereof to provide to the Borrower an opinion of counsel selected by the transferor and reasonably acceptable to the Borrower, the form and substance of which opinion shall be reasonably satisfactory to the Borrower, to the effect that such transfer does not require registration of such transferred Shares under the Securities Act.

 

10.2.

The Lender agrees to the imprinting, so long as required by this Section 10.2, of a legend on any such Shares in the following form:

 

 

[NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN] [THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN] REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL SELECTED BY THE HOLDER, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.

 

10.3.

Certificates evidencing the Shares shall not contain any legend (including the legend set forth in Section 10.2 hereof): (i) while a registration statement covering the resale of such security is effective under the Securities Act, (ii) following any sale of such Shares pursuant to Rule 144, (iii) if Shares are eligible for sale under Rule 144, without the requirement for the Borrower to be in compliance with the current public information required under Rule 144 as to such Shares and without volume or manner-of-sale restrictions, or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission). The Borrower shall cause its counsel to issue a legal opinion to the transfer agent of the Borrower promptly after the respective effective date of the transfer if required by the transfer agent to effect the removal of the legend hereunder.

 

10.4.

The Lender agrees with the Borrower that the Lender will sell any Shares pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Shares are sold pursuant to a registration statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing the Shares as set forth in this Section 10 is predicated upon the Company’s reliance upon this understanding

 

11.	Undertakings

 

11.1.

Within 30 days from the Effective Date, the Company shall file a registration statement with the SEC to register the resale of the Shares by the Lenders, or any Shares issuable to the Lenders pursuant to an adjustment(s) set forth in the Warrant, so as to permit the public resale thereof (the “Resale Registration Statement”). However, if the Company files another resale registration statement with the SEC prior to such date, the Company shall use reasonable best efforts to register the resale of the Shares together with such other registration statement. The Company will use its reasonable efforts to ensure that such Resale Registration Statement is declared effective by the SEC within ninety (90) days of the filing thereof. The Company will ensure that all Shares issuable to the Lender are covered by the Resale Registration Statement and to the extent necessary file with, and cause to be decelerated effective by, the SEC, additional registration statements, to register any Shares not covered by the Resale Registration Statement, which such registration statements shall be filed no later than 45 days following the event triggering the increase of the number of Shares issuable to the Lender.

 

12.

Fees

 

The Lender shall receive a one-time fee associated with the Loan Amount contemplated herein, whereby immediately upon the execution of the Agreement, the Borrower shall issue to the Lender (a) such number of common stock representing five percent (5%) of the Loan Amount at a conversion rate of USD 0.25 (twenty five cents), on a pre-reverse split basis.

 

 

13.	Miscellaneous

 

13.1.

Governing Law; Jurisdiction. The laws of the State of Israel, irrespective of its conflicts of law principles, shall govern the validity of this Agreement, the construction of its terms, and the interpretation and enforcement of the rights and duties of the parties hereto. The appropriate courts in Tel-Aviv – Jaffa, Israel shall have exclusive jurisdiction over any dispute or claim in connection with this Agreement and no other court shall have jurisdiction over any such matter.

 

13.2.

Assignment; Binding Upon Successors and Assigns.

 

The Lender and the Borrower may not assign any of their rights under this Agreement.

 

13.3.

Severability

 

If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be invalid or unenforceable, then the remainder of this Agreement and the application of such provision to other persons or circumstances shall be interpreted so as reasonably to effect the intent of the parties hereto. The Parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that shall achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provision.

 

13.4.

Counterparts; Scanned Signatures

 

This Agreement may be executed in any number of counterparts, each of which shall be an original as regards any Party whose signature appears thereon and all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by one Party hereto to the other Party hereto by e-mail transmission of a photocopy of the original signature page hereto, and upon receipt of such e-mail transmission will be deemed to have the same effect as if the original signature had been delivered to the other parties.

 

13.5.

Amendments; Expenses

 

Any term or provision of this Agreement may be amended mutually in writing by the Parties. Each Party shall bear its own expenses in connection with the execution and performance of this Agreement.

 

13.6.

Waivers

 

A waiver by a Party of any breach or default by the other Party shall not be deemed to constitute a waiver of any other default or any succeeding breach or default. The failure of a Party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of that Party thereafter to enforce such provisions.

 

13.7.

Notices

 

All notices and other communications required or permitted under this Agreement shall be in writing and shall be either hand delivered in person, sent by e-mail, sent by certified or registered mail, postage pre-paid, or sent by express courier service. Such notices and other communications shall be effective upon receipt if hand delivered, if sent by e-mail – one (1) Business Day following transmission, seven (7) Business Days after mailing if sent by mail, and one (1) Business Day after dispatch if sent by express courier, to the following addresses, or such other addresses as any party may notify the other party in accordance with this Clause 13.7: if to Borrower: Viewbix Inc., 11 Derech Menachem Begin Street, Ramat Gan, Israel, Attention: Amihay Hadad, E-mail: amihay@gix-internet.com; if to Lender: Lavi Krasney, E-mail: lavikras@outlook.com.

 

13.8.

Term

 

All obligations, covenants and rights of the Parties hereunder shall terminate and expire upon repayment in full of the amounts to be repaid herein, except for the confidentiality obligations of the Parties hereunder, the applicable undertakings of the Lender pursuant to Clause 12.1 – 12.3 and 12.5 which shall survive the termination of this Agreement in accordance with their respective terms.

 

13.9.

Entire Agreement

 

This Agreement, the annexes and schedules hereto, constitute the entire understanding and agreement of the Parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the Parties with respect hereto.

 

[Signature page follows]

 

 

IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized representative of each Party as of the date first stated above.

 

M.R.M. MERHAVIT HOLDING AND MANAGEMENT LTD.			Viewbix Inc.
By:			By:
Name:			Name:	Amihay Hadad
Title:			Title:	CEO

 

In connection with the rights and obligations of Lender B:

 

David Masasa			Viewbix Inc.
By:			By:
Name:			Name:	Amihay Hadad
Title:			Title:	CEO

 

 

Schedule A

 

Lenders		Address		Loan Amount (USD)
M.R.M Merhavit Holding and Management Ltd.		31 Sokolov Street, Ramat Gan, Israel.		2,680,000
David Masasa (“Lender B”)		17 Monashm Tel Aviv, Israel.		320,000

 

 

Schedule 3 

 

Accredited Investor Declaration

 

 

Schedule 4.1

 

Wiring Information

 

 

Exhibit 10.4

 

NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL SELECTED BY THE HOLDER, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.

 

VIEWBIX INC.

 

Warrant To Purchase Common Stock

 

Warrant No.: [___]

Number of Common Stock: [____]

Date of Issuance: [____], 2024 (“Issuance Date”)

 

Viewbix Inc., a Delaware corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, M.R.M Merhavit Holding and Management Ltd., the registered holder hereof or its permitted assigns (the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company, at the Exercise Price (as defined below) then in effect, at any time or times on or after the date hereof, but not after 11:59 p.m., New York time, on the Expiration Date, (as defined below), [____] fully paid nonassessable shares of Common Stock, subject to adjustment as provided herein (the “Warrant Shares”). Except as otherwise defined herein, capitalized terms in this Warrant to Purchase Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, this “Warrant”), shall have the meanings set forth in Section 17. This Warrant is issued pursuant to that certain Facility Agreement, dated [___], 2024, among the Company and the lenders signatory thereto (the “Agreement Date”), by and among the Company and the Holder (the “Agreement”). Capitalized terms used herein and not otherwise defined shall have the definitions ascribed to such terms in the Agreement.

 

1. EXERCISE OF WARRANT.

 

(a) Mechanics of Exercise. Subject to the terms and conditions hereof (including, without limitation, the limitations set forth in Section 1(f)), this Warrant may be exercised by the Holder at any time or times on or after the Issuance Date, in whole or in part, by (i) delivery of a written notice, in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election to exercise this Warrant and (ii) (A) payment to the Company of an amount equal to the applicable Exercise Price multiplied by the number of Warrant Shares as to which this Warrant is being exercised (the “Aggregate Exercise Price”) in cash by wire transfer of immediately available funds or (B) by notifying the Company that this Warrant is being exercised pursuant to a Cashless Exercise (as defined in Section 1(d)). The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery of the Exercise Notice with respect to less than all of the Warrant Shares shall have the same effect as cancellation of the original Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Warrant Shares. On or before the first (1^st) Trading Day following the date on which the Company has received the Exercise Notice, the Company shall transmit by electronic mail an acknowledgment of confirmation of receipt of the Exercise Notice to the Holder and the Company’s transfer agent (the “Transfer Agent”). On or before the earlier of (i) the second (2^nd) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period, in each case, following the date on which the Holder delivers the Exercise Notice to the Company, so long as the Holder delivers the Aggregate Exercise Price (or notice of a Cashless Exercise) on or prior to the Trading Day following the date on which the Company has received the Exercise Notice (the “Share Delivery Date”) (provided that if the Aggregate Exercise Price has not been delivered by such date, the Share Delivery Date shall be one (1) Trading Day after the Aggregate Exercise Price (or notice of a Cashless Exercise) is delivered), the Company shall (X) provided that the Transfer Agent is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program and (A) the Warrant Shares are subject to an effective resale registration statement in favor of the Holder or (B) if exercised via Cashless Exercise, at a time when Rule 144 would be available for resale of the Warrant Shares by the Holder, credit such aggregate number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit / Withdrawal At Custodian system, or (Y) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program or (A) the Warrant Shares are not subject to an effective resale registration statement in favor of the Holder and (B) if exercised via Cashless Exercise, at a time when Rule 144 would not be available for resale of the Warrant Shares by the Holder, deliver to the Holder, book entry statements evidencing the Warrant Shares, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise. The Company shall be responsible for all fees and expenses of the Transfer Agent and all fees and expenses with respect to the issuance of Warrant Shares via DTC, if any. Upon delivery of the Exercise Notice, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the book entry statements evidencing such Warrant Shares, as the case may be. If this Warrant is submitted in connection with any exercise pursuant to this Section 1(a) and the number of Warrant Shares represented by this Warrant submitted for exercise is greater than the number of Warrant Shares being acquired upon an exercise, then the Company shall as soon as practicable and in no event later than three (3) Trading Days after any exercise and at its own expense, issue a new Warrant (in accordance with Section 7(d)) representing the right to purchase the number of Warrant Shares issuable immediately prior to such exercise under this Warrant, less the number of Warrant Shares with respect to which this Warrant is exercised. No fractional Warrant Shares are to be issued upon the exercise of this Warrant, but rather the number of Warrant Shares to be issued shall be rounded up to the nearest whole number. The Company shall pay any and all taxes which may be payable with respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant. The Company’s obligations to issue and deliver Warrant Shares in accordance with the terms and subject to the conditions hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination.

 

(b) Exercise Price. For purposes of this Warrant, “Exercise Price” means $0.25 per share, subject to adjustment as provided herein.

 

 

(c) Company’s Failure to Timely Deliver Securities. If the Company shall fail to cause its transfer agent to transmit to the Holder on or prior to the Share Delivery Date, Warrant Shares pursuant to an exercise notice delivered by the Holder and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (a) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (b) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (a) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and evidence of the amount of such loss. Nothing herein shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Common Stock upon the exercise of this Warrant as required pursuant to the terms hereof.

 

(d) Cashless Exercise. While this Warrant is outstanding, the Company will use its best efforts to maintain the effectiveness of the Registration Statement. Notwithstanding anything contained herein to the contrary, if the Registration Statement covering the resale of the Warrant Shares is not available for the resale of such Warrant Shares, the Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Aggregate Exercise Price, elect instead to receive upon such exercise the “Net Number” of Common Stock determined according to the following formula (a “Cashless Exercise”):

 

	Net Number =	(A x B) - (A x C)
		B

 

For purposes of the foregoing formula:

 

	A =	the total number of shares with respect to which this Warrant is then being exercised.
	B =	as applicable: (i) the Weighted Average Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the Weighted Average Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 1(a) hereof or (iii) the Weighted Average Price of the Common Stock on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 1(a) hereof after the close of “regular trading hours” on such Trading Day;
	C =	the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.

 

If Common Stock are issued pursuant to this Section 1(d), the Company hereby acknowledges and agrees that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued pursuant to the Agreement. The Company agrees not to take any position contrary to this Section 1(d).

 

(e) Disputes. In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares, the Company shall promptly issue to the Holder the number of Warrant Shares that are not disputed and resolve such dispute in accordance with Section 12.

 

 

(f) Beneficial Ownership Limitations on Exercises. Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder shall not have the right to exercise any portion of this Warrant, pursuant to the terms and conditions of this Warrant to the extent that after giving effect to such exercise, the Holder together with the other Attribution Parties collectively would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the number of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of Common Stock held by the Holder and all other Attribution Parties plus the number of Common Stock issuable upon exercise of this Warrant with respect to which the determination of such sentence is being made, but shall exclude the number of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised portion of this Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 1(f). For purposes of this Section 1(f), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”). For purposes of this Warrant, in determining the number of outstanding Common Stock the Holder may acquire upon the exercise of this Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 20-F, Report of Foreign Private Issuer on Form 6-K or other public filing with the Securities and Exchange Commission (the “SEC”), as the case may be, (y) a more recent public announcement by the Company or (3) any other written notice by the Company or the Transfer Agent setting forth the number of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 1(f), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Trading Day confirm orally and in writing or by electronic mail to the Holder the number of Common Stock then outstanding. In any case, the number of outstanding Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding Common Stock (as determined under Section 13(d) of the 1934 Act) (the number of shares so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage, the “Excess Shares”), then the Holder shall not have the power to vote or to transfer the Excess Shares and such Excess Shares shall be held in abeyance for the Holder until such time or times, as its right thereto would not result in the Holder and its other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be delivered such shares to the extent as if there had been no such limitation. For purposes of clarity, the Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1(f) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 1(f) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.

 

(g) Insufficient Authorized Shares. If at any time while this Warrant remains outstanding the Company does not have a sufficient number of authorized and unreserved Common Stock to satisfy its obligation to reserve for issuance upon exercise of this Warrant at least a number of Common Stock equal to 100% of the number of Common Stock as shall from time to time be necessary to effect the exercise of all of this Warrant then outstanding without regard to any limitation on exercise included herein (the “Required Reserve Amount” and the failure to have such sufficient number of authorized and unreserved Common Stock, an “Authorized Share Failure”), then the Company shall immediately take all action necessary to increase the Company’s authorized Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount for this Warrant then outstanding. Without limiting the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than sixty (60) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its shareholders for the approval of an increase in the number of authorized Common Stock. In connection with such meeting, the Company shall provide each shareholder with a proxy statement and shall use its best efforts to solicit its shareholders’ approval of such increase in authorized Common Stock and to cause its board of directors to recommend to the shareholders that they approve such proposal. Notwithstanding the foregoing, if any such time of an Authorized Share Failure, the Company is able to obtain the approval of holders of a majority of the Common Stock voting at a general meeting to approve the increase in the number of authorized Common Stock, the Company may satisfy this obligation by obtaining such approval. In the event that upon any exercise of this Warrant, the Company does not have sufficient authorized shares to deliver in satisfaction of such exercise, then unless the Holder elects to void such attempted exercise, the Holder may require the Company to pay to the Holder within three (3) Trading Days of the applicable exercise, cash in an amount equal to the product of (i) the quotient determined by dividing (x) the number of Warrant Shares that the Company is unable to deliver pursuant to this Section 1(g), by (y) the total number of Warrant Shares issuable upon exercise of this Warrant (without regard to any limitations or restrictions on exercise of this Warrant) and (ii) the Black Scholes Value; provided, that (x) references to “the day immediately following the public announcement of the applicable Fundamental Transaction” in the definition of “Black Scholes Value” shall instead refer to “the date the Holder exercises this Warrant and the Company cannot deliver the required number of Warrant Shares because of an Authorized Share Failure” and (y) clause (iii) of the definition of “Black Scholes Value” shall instead refer to “the underlying price per share used in such calculation shall be the highest Weighted Average Price during the period beginning on the date of the applicable date of exercise and the date that the Company makes the applicable cash payment.”

 

 

(h) Automatic Exercise. If, at any time while this Warrant remains outstanding, (i) the Company shall receive a written or oral notice from the Nasdaq Stock Market LLC, indicating that the Company is not in compliance with the minimum equity standard requirement for continued listing set forth in Nasdaq Listing Rule 5550(b)(1) or (ii) on the Trading Day prior to the last day of any of the Company’s fiscal reporting periods, the Company determines in good faith and after consultation with its independent auditors that the Company will not be in compliance with Nasdaq Listing Rule 5550(b)(1), then without the need for further consent or action by the Holder, the Company may, at its sole discretion, convert the remaining unexercised portion of this Warrant into Common Stock, at a ratio of one Warrant Share to one Ordinary Share, for no consideration.

 

2. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The Exercise Price and the number of Warrant Shares shall be adjusted from time to time as follows:

 

(a) Adjustment Upon Issuance of Common Stock. If and whenever on or after the Agreement Date, the Company issues or sells, or in accordance with this Section 2 is deemed to have issued or sold, any Common Stock (including the issuance or sale of Common Stock owned or held by or for the account of the Company, but excluding Common Stock deemed to have been issued or sold by the Company in connection with any Excluded Securities) for a consideration per share (the “New Issuance Price”) less than a price (the “Applicable Price”) equal to the Exercise Price in effect immediately prior to such issue or sale or deemed issuance or sale (the foregoing a “Dilutive Issuance”), then immediately after and subject to the consummation of such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price. For purposes of determining the adjusted Exercise Price under this Section 2(a), the following shall be applicable:

 

(i) Issuance of Options. If the Company in any manner grants or sells any Options and the lowest price per share for which one Ordinary Share is issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option is less than the Applicable Price, then such Ordinary Share shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Option for such price per share. For purposes of this Section 2(a)(i), the “lowest price per share for which one Ordinary Share is issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option” shall be equal to the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one Ordinary Share, upon exercise of the Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option less any consideration paid or payable by the Company with respect to such one Ordinary Share, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option. No further adjustment of the Exercise Price shall be made upon the actual issuance of such Common Stock or of such Convertible Securities upon the exercise of such Options or upon the actual issuance of such Common Stock upon conversion, exercise or exchange of such Convertible Securities.

 

 

(ii) Issuance of Convertible Securities. If the Company in any manner issues or sells any Convertible Securities and the lowest price per share for which one Ordinary Share is issuable upon the conversion, exercise or exchange thereof is less than the Applicable Price, then such Ordinary Share shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale of such Convertible Securities for such price per share. For the purposes of this Section 2(a)(ii), the “lowest price per share for which one Ordinary Share is issuable upon the conversion, exercise or exchange thereof” shall be equal to the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one Ordinary Share upon the issuance or sale of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security (if any) less any consideration paid or payable by the Company to holders of such Convertible Security with respect to such one Ordinary Share upon the issuance or sale of such Convertible Security and upon conversion, exercise or exchange of such Convertible Security. No further adjustment of the Exercise Price shall be made upon the actual issuance of such Common Stock upon conversion, exercise or exchange of such Convertible Securities, and if any such issue or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of this Warrant has been or is to be made pursuant to other provisions of this Section 2(a), no further adjustment of the Exercise Price shall be made by reason of such issue or sale.

 

(iii) Change in Option Price or Rate of Conversion. If the purchase price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities are convertible into or exercisable or exchangeable for Common Stock increases or decreases at any time, the Exercise Price in effect at the time of such increase or decrease shall be adjusted to an exercise price, which would have been in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes of this Section 2(a)(iii), if the terms of any Option or Convertible Security that was outstanding as of the Agreement Date are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 2(a) shall be made if such adjustment would result in an increase of the Exercise Price then in effect.

 

(iv) Calculation of Consideration Received. In case any Option is issued in connection with the issue or sale of Common Stock or any other securities of the Company, together comprising one integrated transaction, each security issued will be deemed to have been issued for its relative fair value in relation to the aggregate consideration received by the Company. The relative fair value of such securities will be determined jointly by the Company and the Holder following the closing of the Dilutive Issuance. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Business Days after the tenth (10^th) day following the Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Holder. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company. If any Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company will be the Closing Sale Price of such publicly traded securities on the date of receipt of such publicly traded securities. If any Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such Common Stock, Options or Convertible Securities, as the case may be. The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Company and the Holder following the closing of the Dilutive Issuance. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Business Days after the tenth (10^th) day following the Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Holder. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if a calculation pursuant to this Section 2(a)(iv) would result in an Exercise Price that is lower than the par value of the Common Stock, then the Exercise Price shall be deemed to equal the par value of the Common Stock.

 

 

(b) Voluntary Adjustment By Company. The Company may at any time during the term of this Warrant, with the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the Board of Directors of the Company.

 

(c) Adjustment Upon Subdivision or Combination of Common Stock. If the Company at any time on or after the Agreement Date subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding Common Stock into a greater number of shares, the Exercise Price in effect immediately prior to such subdivision will be proportionately reduced and the number of Warrant Shares will be proportionately increased. If the Company at any time on or after the Agreement Date combines (by combination, reverse stock split or otherwise) one or more classes of its outstanding Common Stock into a smaller number of shares, the Exercise Price in effect immediately prior to such combination will be proportionately increased and the number of Warrant Shares will be proportionately decreased. Any adjustment under this Section 2(c) shall become effective at the close of business on the date the subdivision or combination becomes effective. In each case, the aggregate exercise price and aggregate interest of the Holder in the Company, on a fully diluted basis, will remain the same as before such adjustment.

 

(d) Share Combination Event Adjustment. In addition to the adjustments set forth in this Section 2, if at any time on or after the Issuance Date and prior to June 29, 2024, there occurs any share split, reverse share split, share dividend, share combination recapitalization or other similar transaction involving the Common Stock (each, a “Share Combination Event”, and such date thereof, the “Share Combination Event Date”) and the lowest Weighted Average Price of the Common Stock during the period commencing on the Trading Day immediately following the applicable Share Combination Event Date and ending on the fifth (5^th) Trading Day immediately following the applicable Share Combination Event Date (the “Event Market Price”) (provided if the Share Combination Event is effective prior to the opening of trading on the Principal Market (or if the Common Stock no longer trade on the Principal Market, on the primary Eligible Market on which the Common Stock then trade), then, commencing on the Share Combination Event Date and ending on the fourth (4^th) Trading Day immediately following the applicable Share Combination Event Date (such period, the “Share Combination Adjustment Period”)) is less than the Exercise Price then in effect (after giving effect to the adjustment in clause 2(c) above), then, at the close of trading on the Principal Market (or if the Common Stock no longer trade on the Principal Market, on the primary Eligible Market on which the Common Stock then trade) on the last day of the Share Combination Adjustment Period, the Exercise Price then in effect on such 5^th Trading Day shall be reduced (but in no event increased) to the Event Market Price. For the avoidance of doubt, if the adjustment in this Section 2(d) would otherwise result in an increase in the Exercise Price hereunder, no adjustment shall be made, and if this Warrant is exercised, on any date on which the Holder delivers an Exercise Notice to the Company (an “Exercise Date”) during the Share Combination Adjustment Period, solely with respect to such portion of this Warrant exercised on such applicable Exercise Date, such applicable Share Combination Adjustment Period shall be deemed to have ended on, and included, the Trading Day immediately prior to such Exercise Date and the Event Market Price on such applicable Exercise Date will be the lowest VWAP of the Common Stock immediately prior to the Share Combination Event Date and ending on, and including the Trading Day immediately prior to such Exercise Date. The adjustment pursuant to this Section 2(d) shall apply only to the first Share Combination Event following the Issuance Date.

 

(e) Other Events. If any event occurs of the type contemplated by the provisions of this Section 2 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company’s Board of Directors will make an appropriate adjustment in the Exercise Price and the number of Warrant Shares, as mutually determined by the Company’s Board of Directors and the Holder, so as to protect the rights of the Holder; provided that no such adjustment pursuant to this Section 2(e) will increase the Exercise Price or decrease the number of Warrant Shares as otherwise determined pursuant to this Section 2 and provided, further, that the adjustment pursuant to this Section 2(e) shall be of a technical nature and does not result in a change in the fair value of this Warrant immediately prior to and after the event.

 

 

3. RIGHTS UPON DISTRIBUTION OF ASSETS. If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property, options, evidence of indebtedness or any other assets by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the participation in such Distribution provided, however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Distribution to such extent (and shall not be entitled to beneficial ownership of such Common Stock as a result of such Distribution (and beneficial ownership) to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time or times as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such Distribution (and any Distributions declared or made on such initial Distribution or on any subsequent Distribution held similarly in abeyance) to the same extent as if there had been no such limitation). To the extent that this Warrant has not been partially or completely exercised at the time of such Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the Holder has exercised this Warrant. It is clarified that in such a case the Holder of the Warrant will not be entitled to any further adjustment to the Exercise Price hereunder beyond Holder’s entitlement to participate in such Distribution.

 

4. PURCHASE RIGHTS; FUNDAMENTAL TRANSACTIONS.

 

(a) Purchase Rights. In addition to any adjustments pursuant to Section 2 above, if at any time the Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights provided, however, that to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right to such extent (and shall not be entitled to beneficial ownership of such Common Stock as a result of such Purchase Right (and beneficial ownership) to such extent) and such Purchase Right to such extent shall be held in abeyance for the benefit of the Holder until such time or times as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted, issued or sold on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance) to the same extent as if there had been no such limitation). To the extent that this Warrant has not been partially or completely exercised at the time of such Purchase Rights, such portion of the Purchase Rights shall be held in abeyance for the benefit of the Holder until the Holder has exercised this Warrant. It is clarified that in such a case the Holder of the Warrant will not be entitled to any further adjustment to the Exercise Price hereunder beyond Holder’s entitlement to participate in such Purchase Right.

 

 

(b) Fundamental Transactions. The Company shall not enter into a Fundamental Transaction unless the Successor Entity assumes in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 4(b) pursuant to written agreements in form and substance satisfactory to the Holder, including agreements, if so requested by the Holder, to deliver to the Holder in exchange for the Warrant (or any part thereof) a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant, including, without limitation, an adjusted exercise price equal to the value for the Common Stock reflected by the terms of such Fundamental Transaction, and exercisable for a corresponding number of shares of capital stock equivalent to the Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and satisfactory to the Holder, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such adjustments to the number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the occurrence or consummation of such Fundamental Transaction). Any security issuable or potentially issuable to the Holder pursuant to the terms of this Warrant on the consummation of a Fundamental Transaction that was within the Company’s control to enter into or to avoid shall be registered and freely tradable by the Holder without any restriction or limitation or the requirement to be subject to any holding period pursuant to any applicable securities laws. No later than (i) thirty (30) days prior to the occurrence or consummation of any Fundamental Transaction or (ii) if later, the first Trading Day following the date the Company first becomes aware of the occurrence or potential occurrence of a Fundamental Transaction, the Company shall deliver written notice thereof via facsimile or electronic mail and overnight courier to the Holder. Upon the occurrence or consummation of any Fundamental Transaction that was within the Company’s control to enter into or to avoid, it shall be a required condition to the occurrence or consummation of any Fundamental Transaction that, the Company and the Successor Entity or Successor Entities, jointly and severally, shall succeed to, and the Company shall cause any Successor Entity or Successor Entities to jointly and severally succeed to, and be added to the term “Company” under this Warrant (so that from and after the date of such Fundamental Transaction, each and every provision of this Warrant referring to the “Company” shall refer instead to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Company and the Successor Entity or Successor Entities, jointly and severally, may exercise every right and power of the Company prior thereto and shall assume all of the obligations of the Company prior thereto under this Warrant with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company in this Warrant, and, solely at the request of the Holder, if the Successor Entity and/or Successor Entities is a publicly traded corporation whose common stock is quoted on or listed for trading on an Eligible Market, shall deliver (in addition to and without limiting any right under this Warrant) to the Holder in exchange for this Warrant a security of the Successor Entity and/or Successor Entities evidenced by a written instrument substantially similar in form and substance to this Warrant and exercisable for a corresponding number of shares of capital stock of the Successor Entity and/or Successor Entities (the “Successor Capital Stock”) equivalent to the Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction (such corresponding number of shares of Successor Capital Stock to be delivered to the Holder shall be equal to the greater of (A) the quotient of (i) the aggregate dollar value of all consideration (including cash consideration and any consideration other than cash (“Non-Cash Consideration”), in such Fundamental Transaction, as such values are set forth in any definitive agreement for the Fundamental Transaction that has been executed at the time of the first public announcement of the Fundamental Transaction or, if no such value is determinable from such definitive agreement, as determined in accordance with Section 2 with the term “Non-Cash Consideration” being substituted for the term “Exercise Price”) that the Holder would have been entitled to receive upon the happening of such Fundamental Transaction or the record, eligibility or other determination date for the event resulting in such Fundamental Transaction, had this Warrant been exercised immediately prior to such Fundamental Transaction or the record, eligibility or other determination date for the event resulting in such Fundamental Transaction (without regard to any limitations on the exercise of this Warrant) (the “Aggregate Consideration”) divided by (ii) the per share Closing Sale Price of such Successor Capital Stock on the Trading Day immediately prior to the consummation or occurrence of the Fundamental Transaction and (B) the product of (i) the quotient obtained by dividing (x) the Aggregate Consideration, by (y) the Closing Sale Price of the Common Stock on the Trading Day immediately prior to the consummation or occurrence of the Fundamental Transaction and (ii) the highest exchange ratio pursuant to which any shareholder of the Company may exchange Common Stock for Successor Capital Stock) (provided, however, to the extent that the Holder’s right to receive any such shares of publicly traded common stock (or their equivalent) of the Successor Entity would result in the Holder and its other Attribution Parties exceeding the Maximum Percentage, if applicable, then the Holder shall not be entitled to receive such shares to such extent (and shall not be entitled to beneficial ownership of such shares of publicly traded common stock (or their equivalent) of the Successor Entity as a result of such consideration to such extent) and the portion of such shares shall be held in abeyance for the Holder until such time or times, as its right thereto would not result in the Holder and its other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be delivered such shares to the extent as if there had been no such limitation), and such security shall be satisfactory to the Holder, and with an identical exercise price to the Exercise Price hereunder (such adjustments to the number of shares of capital stock and such exercise price being for the purpose of protecting after the consummation or occurrence of such Fundamental Transaction the economic value of this Warrant that was in effect immediately prior to the consummation or occurrence of such Fundamental Transaction, as elected by the Holder solely at its option). Upon occurrence or consummation of the Fundamental Transaction that was within the Company’s control to enter into or to avoid, and it shall be a required condition to the occurrence or consummation of such Fundamental Transaction that, the Company and the Successor Entity or Successor Entities shall deliver to the Holder confirmation that there shall be issued upon exercise of this Warrant at any time after the occurrence or consummation of the Fundamental Transaction, as elected by the Holder solely at its option, Common Stock, Successor Capital Stock or, in lieu of the Common Stock or Successor Capital Stock (or other securities, cash, assets or other property purchasable upon the exercise of this Warrant prior to such Fundamental Transaction), such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights), which for purposes of clarification may continue to be Common Stock, if any, that the Holder would have been entitled to receive upon the happening of such Fundamental Transaction or the record, eligibility or other determination date for the event resulting in such Fundamental Transaction, had this Warrant been exercised immediately prior to such Fundamental Transaction or the record, eligibility or other determination date for the event resulting in such Fundamental Transaction (without regard to any limitations on the exercise of this Warrant), as adjusted in accordance with the provisions of this Warrant. In addition to and not in substitution for any other rights hereunder, prior to the occurrence or consummation of any Fundamental Transaction that was within the Company’s control to enter into or to avoid, pursuant to which holders of Common Stock are entitled to receive securities, cash, assets or other property with respect to or in exchange for Common Stock (a “Corporate Event”), the Company shall make appropriate provision to ensure that, and any applicable Successor Entity or Successor Entities shall ensure that, and it shall be a required condition to the occurrence or consummation of such Corporate Event that, the Holder will thereafter have the right to receive upon exercise of this Warrant at any time after the occurrence or consummation of the Corporate Event, Common Stock or Successor Capital Stock or, if so elected by the Holder, in lieu of the Common Stock (or other securities, cash, assets or other property) purchasable upon the exercise of this Warrant prior to such Corporate Event (but not in lieu of such items still issuable under Sections 3 and 4(a), which shall continue to be receivable on the Common Stock or on the such shares of stock, securities, cash, assets or any other property otherwise receivable with respect to or in exchange for Common Stock), such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights and any Common Stock) which the Holder would have been entitled to receive upon the occurrence or consummation of such Corporate Event or the record, eligibility or other determination date for the event resulting in such Corporate Event, had this Warrant been exercised immediately prior to such Corporate Event or the record, eligibility or other determination date for the event resulting in such Corporate Event (without regard to any limitations on exercise of this Warrant). Provision made pursuant to the preceding sentence shall be in a form and substance reasonably satisfactory to the Holder. The provisions of this Section 4(b) shall apply similarly and equally to successive Fundamental Transactions and Corporate Events.

 

 

(c) Notwithstanding the foregoing, in the event of Fundamental Transaction, at the request of the Holder delivered before the ninetieth (90^th) day after the occurrence or consummation of such Fundamental Transaction, the Company (or the Successor Entity) shall purchase this Warrant from the Holder by paying to the Holder, within five (5) Business Days after such request (or, if later, on the effective date of the Fundamental Transaction), cash in an amount equal to the Black Scholes Value of the remaining unexercised portion of this Warrant on the date of such Fundamental Transaction; provided, however, that, if such Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive from the Company or any Successor Entity, as of the date of consummation of such Fundamental Transaction, the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid by the Company or any Successor Entity to the holders of Common Stock of the Company in connection with such Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with such Fundamental Transaction.

 

5. NON-CIRCUMVENTION. The Company hereby covenants and agrees that the Company will not, by amendment of its Amended and Restated Articles of Association, or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all times in good faith carry out all of the provisions of this Warrant and take all action as may be required to protect the rights of the Holder. Without limiting the generality of the foregoing, the Company (i) shall not increase the par value of any Common Stock receivable upon the exercise of this Warrant above the Exercise Price then in effect, (ii) shall take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Common Stock upon the exercise of this Warrant, and (iii) shall, so long as the Warrant is outstanding (and remains exercisable in exchange for any Warrant Shares), take all action necessary to reserve and keep available out of its authorized and unissued Common Stock, solely for the purpose of effecting the exercise of the Warrant, 100% of the number of Common Stock as shall from time to time be necessary to effect the exercise of the Warrant then outstanding (without regard to any limitations on exercise).

 

 

6. WARRANT HOLDER NOT DEEMED A SHAREHOLDER. Except as otherwise specifically provided herein, the Holder, solely in such Person’s capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in such Person’s capacity as the Holder of this Warrant, any of the rights of a shareholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a shareholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 6, the Company shall provide the Holder with copies of the same notices and other information given to the shareholders of the Company generally, contemporaneously with the giving thereof to the shareholders.

 

7. REISSUANCE OF WARRANTS.

 

(a) Transfer of Warrant. If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 7(d)), registered as the Holder may request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 7(d)) to the Holder representing the right to purchase the number of Warrant Shares not being transferred.

 

(b) Lost, Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary form and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying this Warrant.

 

(c) Exchangeable for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate the right to purchase the number of Warrant Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant Shares as is designated by the Holder at the time of such surrender; provided, however, that no Warrant for fractional Warrant Shares shall be given.

 

(d) Issuance of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall be of like tenor with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to purchase the Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a) or Section 7(c), the Warrant Shares designated by the Holder which, when added to the number of Common Stock underlying the other new Warrants issued in connection with such issuance, does not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall have an issuance date, as indicated on the face of such new Warrant which is the same as the Issuance Date, and (iv) shall have the same rights and conditions as this Warrant.

 

8. NOTICES. Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance with the notice provisions of the Agreement. The Company shall provide the Holder with prompt written notice of all actions taken pursuant to this Warrant, including in reasonable detail a description of such action and the reason therefor. Without limiting the generality of the foregoing, the Company will give written notice to the Holder (i) immediately upon any adjustment of the Exercise Price, setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least fifteen (15) days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the Common Stock, (B) with respect to any grants, issuances or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property to holders of Common Stock or (C) for determining rights to vote with respect to any Fundamental Transaction, dissolution or liquidation; provided in each case that such information shall be made known to the public prior to or in conjunction with such notice being provided to the Holder. It is expressly understood and agreed that the time of exercise specified by the Holder in each Exercise Notice shall be definitive and may not be disputed or challenged by the Company.

 

 

9. AMENDMENT AND WAIVER. Except as otherwise provided herein, the provisions of this Warrant may be amended or waived and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the Holder.

 

10. GOVERNING LAW; JURISDICTION; JURY TRIAL. This Warrant shall be governed by and construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Warrant shall be governed by, the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. The Company 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 herewith or with any transaction contemplated hereby or discussed herein, 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. The Company 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 to the Company at the address set forth on the signature page of the 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. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of the Holder. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY.

 

11. CONSTRUCTION; HEADINGS. This Warrant shall be deemed to be jointly drafted by the Company and the Holder and shall not be construed against any Person as the drafter hereof. The headings of this Warrant are for convenience of reference and shall not form part of, or affect the interpretation of, this Warrant.

 

12. DISPUTE RESOLUTION. In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares, the Company shall submit the disputed determinations or arithmetic calculations via facsimile or electronic mail within two (2) Business Days of receipt of the Exercise Notice giving rise to such dispute, as the case may be, to the Holder. If the Holder and the Company are unable to agree upon such determination or calculation of the Exercise Price or the Warrant Shares within three (3) Business Days of such disputed determination or arithmetic calculation being submitted to the Holder, then the Company shall, within two (2) Business Days submit via facsimile or electronic mail (a) the disputed determination of the Exercise Price to an independent, reputable investment bank selected by the Company and approved by the Holder or (b) the disputed arithmetic calculation of the Warrant Shares to the Company’s independent, outside accountant. The Company shall cause at its expense the investment bank or the accountant, as the case may be, to perform the determinations or calculations and notify the Company and the Holder of the results no later than ten (10) Business Days from the time it receives the disputed determinations or calculations. Such investment bank’s or accountant’s determination or calculation, as the case may be, shall be binding upon all parties absent demonstrable error.

 

13. REMEDIES, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant shall be cumulative and in addition to all other remedies available under this Warrant and the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the right of the Holder to pursue actual damages for any failure by the Company to comply with the terms of this Warrant. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the holder of this Warrant shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, without the necessity of showing economic loss and without any bond or other security being required.

 

 

14. TRANSFER. This Warrant and the Warrant Shares may be offered for sale, sold, transferred, pledged or assigned without the consent of the Company.

 

15. SEVERABILITY. If any provision of this Warrant is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Warrant so long as this Warrant as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).

 

16. DISCLOSURE. Upon receipt or delivery by the Company of any notice in accordance with the terms of this Warrant, unless the Company has in good faith determined that the matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries (as defined in the Agreement), the Company shall contemporaneously with any such receipt or delivery publicly disclose such material, nonpublic information on a Report of Foreign Private Issuer on Form 6-K or otherwise. In the event that the Company believes that a notice contains material, nonpublic information relating to the Company or its Subsidiaries, the Company so shall indicate to the Holder contemporaneously with delivery of such notice, and in the absence of any such indication, the Holder shall be allowed to presume that all matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries.

 

17. CERTAIN DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings:

 

(a) “1933 Act” means the Securities Act of 1933, as amended.

 

(b) “Affiliate” shall have the meaning ascribed to such term in Rule 405 of the 1933 Act.

 

(c) “Approved Stock Plan” means any employee benefit plan or share incentive plan which has been approved by the Board of Directors of the Company, pursuant to which the Company’s securities may be issued to any employee, officer or director for services provided to the Company.

 

(d) “Attribution Parties” means, collectively, the following Persons: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by the Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership of the Common Stock would or could be aggregated with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Maximum Percentage.

 

(e) “Black Scholes Value” means the value of this Warrant calculated using the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg determined as of the day immediately following the public announcement of the applicable Fundamental Transaction, or, if the Fundamental Transaction is not publicly announced, the date the Fundamental Transaction is consummated, and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of this Warrant, (ii) an expected volatility equal to remaining term of this Warrant, (iii) a remaining term of this Warrant equal to the time between the date of the public announcement of the applicable Fundamental Transaction, or, if the Fundamental Transaction is not publicly announced, the date the Fundamental Transaction is consummated, and (iv) the underlying price per share used in such calculation shall be the average of the Weighted Average for the 30 Trading Days prior to the Trading Date immediately preceding the consummation of the applicable Fundamental Transaction.

 

 

(f) “Bloomberg” means Bloomberg Financial Markets.

 

(g) “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.

 

(h) “Closing Bid Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid price and last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price, as the case may be, then the last bid price or the last trade price, respectively, of such security prior to 4:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last closing bid price or last trade price, respectively, of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively, of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any market makers for such security as reported on the Pink Open Market. If the Closing Bid Price or the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Bid Price or the Closing Sale Price, as the case may be, of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved pursuant to Section 12. All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification or other similar transaction during the applicable calculation period.

 

(i) “Convertible Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable for Common Stock.

 

(j) “Eligible Market” means the Principal Market, the NYSE American, The Nasdaq Global Select Market, The Nasdaq Global Market, The New York Stock Exchange, Inc., the OTC QB or the OTC QX.

 

(k) “Excluded Securities” means any Common Stock issued or issuable or deemed to be issued in accordance with Section 2(a) hereof by the Company: (i) under any Approved Stock Plan, (ii) upon exercise of the Warrant issued pursuant to the Agreement; provided, that the terms of such Warrant are not amended, modified or changed on or after the Agreement Date, (iii) upon conversion, exercise or exchange of any Options or Convertible Securities which are outstanding on the day immediately preceding the Agreement Date; provided, that such issuance of Common Stock upon exercise of such Options or Convertible Securities is made pursuant to the terms of such Options or Convertible Securities in effect on the date immediately preceding the Agreement Date and such Options or Convertible Securities are not amended, modified or changed on or after the Agreement Date (iv) upon a dividend or distribution to all holders of Common Stock (including pursuant to a rights plan) or (v) upon a stock split, reverse stock split, distribution of bonus shares, combination or other recapitalization events.

 

(l) “Expiration Date” means the date thirty six (36) months after the Issuance Date or, if such date falls on a day other than a Business Day or on which trading does not take place on the Principal Market (a “Holiday”), the next day that is not a Holiday.

 

 

(m) “Fundamental Transaction” means (A) that the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation) another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more Subject Entities, or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its Common Stock be subject to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders of more than (x) 50% of the outstanding Common Stock, more than (y) 50% of the outstanding Common Stock calculated as if any Common Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender or exchange offer were not outstanding; or (z) such number of Common Stock such that all Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding Common Stock, or (iv) consummate a stock purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more Subject Entities whereby all such Subject Entities, individually or in the aggregate, acquire, either (x) more than 50% of the outstanding Common Stock, (y) more than 50% of the outstanding Common Stock calculated as if any Common Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such stock purchase agreement or other business combination were not outstanding; or (z) such number of Common Stock such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of more than 50% of the outstanding Common Stock, or (v) reorganize, recapitalize or reclassify its Common Stock, (B) that the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender, tender offer, exchange, reduction in outstanding Common Stock, merger, consolidation, business combination, reorganization, recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of either (x) more than 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock, (y) more than 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock not held by all such Subject Entities as of the Agreement Date calculated as if any Common Stock held by all such Subject Entities were not outstanding, or (z) a percentage of the aggregate ordinary voting power represented by issued and outstanding Common Stock or other equity securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other shareholders of the Company to surrender their Common Stock without approval of the shareholders of the Company or (C) directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction.

 

(n) “Group” means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.

 

(o) “Options” means any rights, warrants or options to subscribe for or purchase (i) Common Stock or (ii) Convertible Securities.

 

(p) “Common Stock” means (i) the Company’s common stock, par value $0.0001 per share, and (ii) any share capital into which such Common Stock shall have been changed or any share capital resulting from a reclassification, reorganization or reclassification of such Common Stock.

 

(q) “Parent Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person, including such entity whose common capital or equivalent equity security is quoted or listed on an Eligible Market (or, if so elected by the Holder, any other market, exchange or quotation system), or, if there is more than one such Person or such entity, the Person or such entity designated by the Holder or in the absence of such designation, such Person or entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.

 

(r) “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and a government or any department or agency thereof.

 

 

(s) “Principal Market” means The Nasdaq Capital Market.

 

(t) “Registration Statement” means a registration statement registering the Warrant Shares under the Securities Act.

 

(u) “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Eligible Market with respect to the Common Stock as in effect on the date of delivery of the applicable Exercise Notice.

 

(v) “Subject Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.

 

(w) “Successor Entity” means one or more Person or Persons (or, if so elected by the Holder, the Company or Parent Entity) formed by, resulting from or surviving any Fundamental Transaction or one or more Person or Persons (or, if so elected by the Holder, the Company or the Parent Entity) with which such Fundamental Transaction shall have been entered into.

 

(x) “Trading Day” means any day on which the Common Stock are traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock on such day, then on the principal securities exchange or securities market on which the Common Stock are then traded.

 

(y) “Weighted Average Price” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market during the period beginning at 9:30:01 a.m., New York time (or such other time as the Principal Market publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York time (or such other time as the Principal Market publicly announces is the official close of trading), as reported by Bloomberg through its “Volume at Price” function or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time (or such other time as such market publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York time (or such other time as such market publicly announces is the official close of trading), as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported on the Pink Open Market. If the Weighted Average Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Weighted Average Price of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved pursuant to Section 12 with the term “Weighted Average Price” being substituted for the term “Exercise Price.” All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification or other similar transaction during the applicable calculation period.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the Company has caused this Warrant to Purchase Common Stock to be duly executed as of the Issuance Date set out above.

 

	VIEWBIX INC.
	By:
	Name:
	Title:

 

 

EXHIBIT A

 

EXERCISE NOTICE

TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS

WARRANT TO PURCHASE COMMON STOCK

 

VIEWBIX INC.

 

The undersigned holder hereby exercises the right to purchase _________________ Common Stock (“Warrant Shares”) of Viewbix Inc., a Delaware corporation (the “Company”), evidenced by the attached Warrant to Purchase Common Stock (the “Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.

 

1. Form of Exercise Price. The Holder intends that payment of the Exercise Price shall be made as:

 

____________ a “Cash Exercise” with respect to _________________ Warrant Shares; and/or

 

____________ a “Cashless Exercise” with respect to _______________ Warrant Shares, resulting in a delivery obligation of the Company to the Holder of __________ Common Stock representing the applicable Net Number.

 

2. Payment of Exercise Price. In the event that the holder has elected a Cash Exercise with respect to some or all of the Warrant Shares to be issued pursuant hereto, the holder shall pay the Aggregate Exercise Price in the sum of $___________________ to the Company in accordance with the terms of the Warrant.

 

3. Delivery of Warrant Shares. The Company shall deliver to the holder __________ Warrant Shares in accordance with the terms of the Warrant.

 

Date: _______________ __, ______

 

Name of Registered Holder
By:
Name :
Title :

 

 

ACKNOWLEDGMENT

 

The Company hereby acknowledges this Exercise Notice and hereby directs [●] to issue the above indicated number of Common Stock in accordance with the Transfer Agent Instructions dated ________ __, 2024 from the Company and acknowledged and agreed to by [●].

 

	VIEWBIX INC.
	By:
	Name:
	Title:

 

 

  

 

Exhibit 99.1

 

Viewbix to Acquire 19.99% Stake in AI and Natural Language Processing Grammar Company

 

Ramat Gan, Israel, July 30, 2024 – Viewbix Inc. (OTC: VBIX) (“Viewbix” or the “Company”), a global developer of mar-tech and ad-tech innovative technologies, today announced it signed a securities exchange agreement to acquire of a 19.99% stake in Metagramm Software Ltd. (“Metagramm”), an innovative software company specializing in artificial intelligence (AI) and natural language processing (NLP) communication-based solutions.

 

Metagramm developed Bubbl, an innovative writing tool utilizing machine learning, NLP, AI, and deep learning technologies. Bubbl was created using minimalistic and clean designs, presenting a non-invasive writing tool. It allows users to operate in different modes, including an interactive re-write floating window mode, interactive inline mode and grammar-only mode.

 

Bubbl aims to revolutionize the field of writing tools and offer innovation document re-writing by combining classic semantic analysis with advanced technology, such as pre-training, and reinforcement learning of Specialized Language Models (SLMs) and Large Language Models (LLMs).

 

As part of the Agreement, Viewbix will be issued 19.99% of the issued and outstanding capital stock of Metagramm as of immediately prior to the closing and Metagramm will be issued 9.99% of the issued and outstanding capital stock of Viewbix as of immediately prior to the closing.

 

About Viewbix Inc.

 

Viewbix, through its subsidiaries Gix Media Ltd. and Cortex Media Group Ltd., operates in the field of digital advertising. The Group has two main activities search and digital content. The search develops a variety of technological software solutions, which perform automation, optimization and monetization of internet campaigns, for the purposes of acquiring and routing internet user traffic to its customers. The digital content is engaged in the creation and editing of content, in different languages, for different target audiences, for the purposes of generating revenues from leading advertising platforms, including Google, Facebook, Yahoo and Apple, by utilizing such content to obtain internet user traffic for its advertisers. Viewbix’s technological tools allow advertisers and website owners to earn more from their advertising campaigns and generate additional profits from their websites.

 

For more information about Viewbix, visit https://viewbix.com/investors/

 

Forward-Looking Statements

 

This press release contains forward-looking statements within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995 and other Federal securities laws. Words such as “expects,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates” and similar expressions or variations of such words are intended to identify forward-looking statements. For example, Viewbix is using forward-looking statements when it discusses Bubbl’s potential impact on the market for writing tools. Because such statements deal with future events and are based on Viewbix’s current expectations, they are subject to various risks and uncertainties, and actual results, performance or achievements could differ materially from those described in or implied by the statements in this press release.

 

The forward-looking statements contained or implied in this press release are subject to other risks and uncertainties, including those discussed in any filings with the SEC. Except as otherwise required by law, Viewbix undertakes no obligation to publicly release any revisions to these forward-looking statements to reflect events or circumstances after the date hereof or to reflect the occurrence of unanticipated events. References and links to websites have been provided as a convenience, and the information contained on such websites is not incorporated by reference into this press release. Viewbix is not responsible for the contents of third-party websites.

 

INVESTOR RELATIONS CONTACTS:

 

Michal Efraty

Investor Relations

+972-(0)52-3044404

michal@efraty.com

 

 

v3.24.2

Cover	Jul. 30, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jul. 30, 2024
Entity File Number	000-15746
Entity Registrant Name	VIEWBIX INC.
Entity Central Index Key	0000797542
Entity Tax Identification Number	68-0080601
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	3 Hanehoshet St, Building B
Entity Address, Address Line Two	7th floor
Entity Address, City or Town	Tel Aviv
Entity Address, Country	IL
Entity Address, Postal Zip Code	6971068
City Area Code	+972
Local Phone Number	73-391-2900
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	false

---