As
filed with the Securities and Exchange Commission on August 15,
2008
| Registration No. 333- |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
F-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
XTL
BIOPHARMACEUTICALS LTD.
(Exact
Name of Registrant as Specified in Its Charter)
|
Israel
|
98-0487467
|
|
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
(I.R.S.
Employer
Identification
No.)
|
711
Executive Blvd., Suite Q
Valley
Cottage, New York 10989
Tel:
(845) 267-0707
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s
Principal Executive Offices)
Ron
Bentsur
Chief
Executive Officer
711
Executive Blvd., Suite Q
Valley
Cottage, NY 10989
Tel:
(845) 267-0707
Fax:
(845) 267-0926
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of
Agent
For Service)
The
Commission is requested to send copies of all communications to:
Mark
F. McElreath, Esq.
Alston
& Bird LLP
90
Park Avenue
New
York, New York 10016-1387
Telephone:
(212) 210-9595
Facsimile:
(212) 922-3995
Approximate
date of commencement of proposed sale to the public: From
time to time after the effective date of this registration
statement.
If
the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. ¨
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, check
the following box. x
If
this
Form is filed to register additional securities for an offering pursuant to
Rule
462(c) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
______
If
this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
______
If
this
Form is a registration statement pursuant to General Instruction I.C. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If
this
Form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.C. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. ¨
CALCULATION
OF REGISTRATION FEE
|
Title
of Each
Class Of Securities
To Be
Registered
|
Proposed
Maximum
Aggregate
Offering Price
|
Amount
of
Registration
Fee
|
|||||
|
Ordinary
Shares, NIS 0.02 par value per share (1)
|
$
|
31,880,000
|
(2)
|
$
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1,253
|
||
| (1) |
Amount
to be registered consists of an aggregate of 8,000,000 American Depositary
Receipts to be issued by XTL Biopharmaceuticals Ltd. from time to
time in
primary offerings of XTL Biopharmaceuticals Ltd.’s ordinary shares,
including in satisfaction of payment obligations under future licensing
and servicing agreements, calculated using a per ADR price of $ 3.985,
the
average of the high and low prices of American Depositary Receipts,
representing the Company’s ordinary shares, reported on the Nasdaq Capital
Market on August 14, 2008.
|
| (2) |
The
proposed maximum aggregate offering price has been estimated solely
for
the purpose of calculating the registration
fee pursuant to Rule 457(o) of the Securities
Act.
|
|
The
Registrant hereby amends this registration statement on such date
or dates
as may be necessary to delay its effective date until the Registrant
shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section
8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may
determine.
|
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and we are not soliciting offers to buy these securities in
any
jurisdiction where the offer or sale is not permitted.
Subject
to Completion—Dated August 15, 2008
PROSPECTUS
XTL
Biopharmaceuticals Ltd.
80,000,000
Ordinary
Shares
(in
the
form of 8,000,000 American Depositary Shares)
This
prospectus relates to securities that we may offer from time to time in primary
offerings of our securities, including in satisfaction of payment obligations
under future licensing and servicing agreements. You should read this prospectus
and any supplement, including information incorporated by reference herein
or
therein, carefully before you invest.
We
may
offer securities in one or more offerings in amounts, at prices, and on terms
determined at the time of the offering. We may sell securities through agents
we
select or through underwriters and dealers we select, or directly to a limited
number of purchasers or a single purchaser. If we use agents, underwriters
or
dealers, we will name them and describe their compensation in a prospectus
supplement.
This
prospectus describes some of the general terms that may apply to these
securities. The specific terms of any securities to be offered will be described
in a supplement to this prospectus that contains specific information about
the
offering and the terms of the securities.
Our
ordinary shares are traded in the form of American Depository Receipts, or
ADRs,
evidencing American Depository Shares, or ADSs, on the Nasdaq Capital Market
under the symbol “XTLB.” Each ADR represents ten ordinary shares. Our ordinary
shares are traded on the Tel Aviv Stock Exchange under the symbol “XTL.” On
August 14, 2008, the closing price of our ADRs as reported on the Nasdaq Capital
Market was $ 3.99 per ADR, and the closing price of our ordinary shares as
reported on the Tel Aviv Stock Exchange was NIS 1.428 per ordinary
share.
Investing
in our securities involves certain risks. See “Risk Factors” beginning on page 4
of our Annual Report on Form 20-F for the year ended December 31, 2007, which
has been filed with the Securities and Exchange Commission and is incorporated
by reference into this prospectus. You should read the entire prospectus
carefully before you make your investment decision.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or determined if this prospectus
is
truthful or complete. Any representation to the contrary is a criminal
offense.
The
date
of this prospectus
is
, 2008
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Page
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Important
Information About This Prospectus
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2
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Where
You Can Find More Information
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2
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Cautionary
Note Regarding Forward-Looking Statements
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3
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Risk
Factors
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3
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|
XTL
Biopharmaceuticals Ltd.
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4
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The
Offering
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5
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Capitalization
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5
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Description
of Share Capital
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6
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|
Description
of American Depository Receipts
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6
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Description
of Ordinary Shares
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13
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|
Plan
of Distribution
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17
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Indemnification
for Liabilities
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18
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|
Legal
Matters
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18
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|
Experts
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18
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i
IMPORTANT
INFORMATION ABOUT THIS PROSPECTUS
This
prospectus is part of a “shelf” registration statement that we filed with the
Securities and Exchange Commission, or SEC. By using a shelf registration
statement, we may sell our securities, as described in this prospectus, from
time to time in one or more offerings. Each time we sell securities in primary
offerings, we will provide a supplement to this prospectus that contains
specific information about the terms of such offering. The supplement may also
add, update or change information contained in this prospectus. Before
purchasing any securities, you should carefully read both this prospectus and
any supplement, together with the additional information incorporated into
this
prospectus or described under the heading “Where You Can Find More
Information.”
You
should rely only on the information contained or incorporated by reference
in
this prospectus and any supplement. We have not authorized any other person
to
provide you with different information. If anyone provides you with different
or
inconsistent information, you should not rely on it. We will not make an offer
to sell securities in any jurisdiction where the offer or sale is not permitted.
You should assume that the information appearing in this prospectus, as well
as
information we previously filed with the SEC and have incorporated by reference,
is accurate as of the date on the front cover of this prospectus only. Our
business, financial condition, results of operations and prospects may have
changed since that date.
We
will
not use this prospectus to offer and sell securities in primary offerings unless
it is accompanied by a supplement that more fully describes the terms of the
offering.
WHERE
YOU CAN FIND MORE INFORMATION
We
have
filed with the SEC a registration statement on Form F-3 under the Securities
Act
of 1933, as amended, or the Securities Act, with respect to our ordinary shares
offered hereby. This prospectus, which forms part of the registration statement,
does not contain all of the information set forth in the registration statement
and the exhibits and schedules to the registration statement. Some items are
omitted in accordance with the rules and regulations of the SEC. For further
information about us and our ordinary shares and our ADRs, we refer you to
the
registration statement and the exhibits and schedules to the registration
statement filed as part of the registration statement. Statements contained
in
this prospectus as to the contents of any contract or other document filed
as an
exhibit are qualified in all respects by reference to the actual text of the
exhibit. You may read and copy the registration statement, including the
exhibits and schedules to the registration statement, along with any other
reports we have filed with the SEC, including our annual reports on Form 20-F
and periodic reports on Form 6-K, at the SEC’s Public Reference Room at 100 F
Street, N.E., Washington, D.C. 20549. You can obtain information on the
operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
In
addition, the SEC maintains an Internet site at www.sec.gov,
from
which you can electronically access the registration statement, including the
exhibits and schedules to the registration statement.
We
are
“incorporating by reference” into this prospectus certain documents we file with
the SEC, which means that we can disclose important information to you by
referring you to these documents. The information in the documents incorporated
by reference is considered to be part of this prospectus. We incorporate by
reference:
| · |
our
annual report on Form 20-F for the fiscal year ended December 31,
2007,
filed with the SEC on March 27,
2008;
|
| · |
our
current reports on Form 6-K filed with the SEC on May 28, 2008, June
30,
2008, August 5, 2008, August 14, 2008 (Film Nos. 081018968, 081019092
and
081020491), and August 15, 2008;
|
| · |
all
future annual reports on Form 20-F;
and
|
| · |
any
future reports on Form 6-K that we so indicate are incorporated by
reference, that we may file with or furnish to the SEC under Sections
13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934, as
amended,
or the Exchange Act,
|
until
all
the securities offered by this prospectus are sold.
-2-
Information
contained in this prospectus updates, modifies or supersedes, as applicable,
the
information contained in earlier-dated documents incorporated by reference.
Information in documents that we file with the SEC after the date of this
prospectus will automatically update and supersede information in this
prospectus or in earlier-dated documents incorporated by reference.
Upon
written or oral request, we will provide a copy of the documents we incorporate
by reference (including any exhibits specifically incorporated by reference
in
such documents), at no cost, to any person to whom this prospectus is delivered.
To request a copy of any or all of these documents, you should write or
telephone us at: 711 Executive Blvd., Suite Q, Valley Cottage, New York 10989
(telephone: 845-267-0707). Our primary internet address is www.xtlbio.com.
None
of the information on our website is incorporated by reference into this
prospectus.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain
matters discussed in this prospectus may constitute forward-looking statements
for purposes of the Securities Act, and the Exchange Act, and involve known
and
unknown risks, uncertainties and other factors that may cause our actual
results, performance or achievements to be materially different from the future
results, performance or achievements expressed or implied by such
forward-looking statements. The words “expect,” “anticipate,” “intend,” “plan,”
“believe,” “seek,” “estimate,” and similar expressions are intended to identify
such forward-looking statements. Our actual results may differ materially from
the results anticipated in these forward-looking statements due to a variety
of
factors, including, without limitation, those discussed under “Risks Factors” in
our Annual Report on Form 20-F, as well as factors which may be identified
from
time to time in our other filings with the SEC, or in the documents where such
forward-looking statements appear. All written or oral forward-looking
statements attributable to us are expressly qualified in their entirety by
these
cautionary statements.
The
forward-looking statements contained in this prospectus reflect our views and
assumptions only as of the date of this prospectus. Except as required by law,
we assume no responsibility for updating any forward-looking statements.
RISK
FACTORS
Investment
in our securities involves a high degree of risk. You should carefully consider
the risks described in the section “Risk Factors” contained in our annual report
on form 20-F for the year ended December 31, 2007, and that may be contained
in
any filing we make with the SEC or any applicable prospectus supplement or
other
offering material, in addition to the other information contained in this
prospectus, in an applicable prospectus supplement, or incorporated by reference
herein, before purchasing any of our securities. The section “Risk Factors”
contained in our Annual Report on form 20-F for the year ended December 31,
2007
is incorporated herein by reference.
-3-
PROSPECTUS
SUMMARY
The
following is a summary of selected information contained elsewhere in this
prospectus. It does not contain all of the information that you should consider
before deciding to invest in our ordinary shares. You should read this entire
prospectus carefully, especially the section entitled “Risk Factors”. Unless the
context requires otherwise, references in this prospectus to “XTLbio,” the
“Company,” “we,” “us” and “our” refer to XTL Biopharmaceuticals Ltd. and our
wholly-owned subsidiaries, XTL Biopharmaceuticals, Inc. and XTL Development,
Inc. All references herein to “dollars” or “$” are to United States dollars, and
all references to “Shekels” or “NIS” are to New Israeli
Shekels.
XTL
BIOPHARMACEUTICALS LTD.
We
are a
biopharmaceutical company engaged in the development of therapeutics for the
treatment of diabetic neuropathic pain and HCV. We are developing Bicifadine,
a
serotonin and norepinephrine reuptake inhibitor, for the treatment of diabetic
neuropathic pain, which is currently in a Phase 2b study. We have out-licensed
our novel pre-clinical HCV small molecule inhibitor program. We also have an
active in-licensing and acquisition program designed to identify and acquire
additional drug candidates.
Our
ADRs
are quoted on the Nasdaq Capital Market under the symbol “XTLB.” Our ordinary
shares are traded on the Tel Aviv Stock Exchange under the symbol “XTL.” We
operate under the laws of the State of Israel, under the Israeli Companies
Act,
and in the US, we operate subject to the Securities Act, the Exchange Act and
the regulations of the Nasdaq Capital Market.
Our
principal offices are located at 711 Executive Blvd., Suite Q,
Valley
Cottage, New York 10989, and our telephone number is 845-267-0707. The principal
offices of XTL Biopharmaceuticals, Inc., our wholly-owned US subsidiary and
agent for service of process in the US, are also located at 711 Executive Blvd.,
Suite Q,
Valley
Cottage, New York 10989, and its telephone number is 845-267-0707. Our primary
internet address is www.xtlbio.com. None of the information on our website
is
incorporated by reference into this prospectus.
-4-
THE
OFFERING
|
Securities
offered hereby
|
80,000,000
ordinary shares, NIS 0.02 par value per ordinary share, in the form
of
8,000,000 American Depositary
Shares
|
|
Use
of Proceeds
|
The
securities being registered by this prospectus will be issued from
time to
time in primary offerings of our securities, including in satisfaction
of
payment obligations under future licensing and servicing agreements.
We
intend to use the net proceeds of any primary offering of our securities
as set forth in the applicable prospectus
supplement.
|
|
Nasdaq
Capital Symbol for ADRs
|
XTLB
|
CAPITALIZATION
The
following table sets forth our capitalization as of June 30, 2008.
You
should read this table in conjunction with our consolidated financial statements
and related notes included in our most recent Annual Report on Form
20-F.
|
(In
thousands, except per share amounts)
|
As
of
June
30, 2008
(unaudited)
|
|||
|
Cash,
cash equivalents and short-term bank deposits
|
$
|
8,288
|
||
|
Shareholders’
equity:
|
||||
|
Ordinary
shares of NIS 0.02 par value (500,000,000 authorized as of June 30,
2008; 292,805,326 issued and outstanding as of June 30, 2008)
|
1,445
|
|||
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Additional
paid in capital
|
148,277
|
|||
|
Deficit
accumulated during development stage
|
(146,977
|
)
|
||
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Total
shareholders’ equity
|
2,745
|
|||
|
Total
capitalization
|
$
|
2,745
|
||
-5-
DESCRIPTION
OF SHARE CAPITAL
Share
Capital
As
of
December 31, 2002, we had 300,000,000 ordinary shares, par value NIS 0.02,
authorized and 111,165,364 ordinary shares issued and outstanding. Since such
date and through June 30, 2008, we have issued an aggregate of 5,164,120
ordinary shares upon the exercise of options. In addition, in August 2004,
we
issued 56,009,732 ordinary shares pursuant to a placing and open offer for
new
ordinary shares on the London Stock Exchange (we subsequently delisted our
ordinary shares from the London Stock Exchange on October 31, 2007), in
September 2005, we issued 1,314,420 ordinary shares pursuant to a license
agreement and an asset purchase agreement with VivoQuest Inc., in May 2006,
we
issued 46,666,670 ordinary shares pursuant to a private placement, and in
November 2007, we issued 72,485,020 ordinary shares pursuant to a private
placement.
As
of
June 30, 2008 we had 500,000,000 ordinary shares, par value NIS 0.02, authorized
and 292,805,326 ordinary
shares issued and outstanding. All of the outstanding shares are issued and
fully paid.
As
of
June 30, 2008, an additional 52,436,413 options and warrants were issuable
upon
the exercise of outstanding options and warrants to purchase our ordinary
shares. The exercise price of the options and warrants outstanding is between
$0.106 and $2.11 per share.
DESCRIPTION
OF AMERICAN DEPOSITORY RECEIPTS
American
Depository Shares
One
ADR
represents an ownership interest in ten of our ordinary shares. Each ADR also
represents securities, cash or other property deposited with The Bank of New
York Mellon but not distributed to ADR holders. The Bank of New York Mellon’s
Corporate Trust Office is located at 101 Barclay Street, New York, NY 10286,
U.S.A. Their principal executive office is located at One Wall Street, New
York,
NY 10286, U.S.A.
You
may
hold ADRs either directly or indirectly through your broker or other financial
institution. If you hold ADRs directly, you are an ADR holder. This description
assumes you hold your ADRs directly. If you hold the ADRs indirectly, you must
rely on the procedures of your broker or other financial institution to assert
the rights of ADR holders described in this section. You should consult with
your broker or financial institution to find out what those procedures are.
Because
The Bank of New York Mellon will actually hold the ordinary shares, you must
rely on it to exercise the rights of a shareholder. The obligations of The
Bank
of New York Mellon are set out in a deposit agreement among us, The Bank of
New
York Mellon and you, as an ADR holder. The agreement and the ADRs are generally
governed by New York law.
The
following is a summary of the agreement. Because it is a summary, it does not
contain all the information that may be important to you. For more complete
information, you should read the entire agreement and the ADR. Directions on
how
to obtain copies of these are provided in the section entitled “Where You Can
Find More Information.”
Share
Dividends and Other Distributions
The
Bank
of New York Mellon has agreed to pay to you the cash dividends or other
distributions it or the custodian receives on shares or other deposited
securities after deducting its fees and expenses. You will receive these
distributions in proportion to the number of shares your ADRs
represent.
Cash.
The Bank
of New York Mellon will convert any cash dividend or other cash distribution
we
pay on the shares into U.S. dollars, if it can do so on a reasonable basis
and
can transfer the U.S. dollars to the U.S. If that is not possible or if any
approval from any government or agency thereof is needed and cannot be obtained,
the agreement allows The Bank of New York Mellon to distribute the foreign
currency only to those ADR holders to whom it is possible to do so. It will
hold
the foreign currency it cannot convert for the account of the ADR holders who
have not been paid. It will not invest the foreign currency and it will not
be
liable for the interest.
-6-
Before
making a distribution, any withholding taxes that must be paid under U.S. law
will be deducted. The Bank of New York Mellon will distribute only whole U.S.
dollars and cents and will round fractional cents to the nearest whole cent.
If
the exchange rates fluctuate during a time when The Bank of New York Mellon
cannot convert the foreign currency, you may lose some or all of the value
of
the distribution.
Shares.
The
Bank
of New York Mellon may distribute new ADRs representing any shares we may
distribute as a dividend or free distribution, if we furnish it promptly with
satisfactory evidence that it is legal to do so. The Bank of New York Mellon
will only distribute whole ADRs. It will sell shares which would require it
to
use a fractional ADR and distribute the net proceeds in the same way as it
does
with cash. If The Bank of New York Mellon does not distribute additional ADRs,
each ADR will also represent the new shares.
Rights
to receive additional shares.
If we
offer holders of our ordinary shares any rights to subscribe for additional
shares or any other rights, The Bank of New York Mellon may make these rights
available to you. We must first instruct The Bank of New York Mellon to do
so
and furnish it with satisfactory evidence that it is legal to do so. If we
do
not furnish this evidence and/or give these instructions, and The Bank of New
York Mellon decides it is practical to sell the rights, The Bank of New York
Mellon will sell the rights and distribute the proceeds, in the same way as
it
does with cash. The Bank of New York Mellon may allow rights that are not
distributed or sold to lapse. In that case, you will receive no value for them.
If The Bank of New York Mellon makes rights available to you, upon instruction
from you, it will exercise the rights and purchase the shares on your behalf.
The Bank of New York Mellon will then deposit the shares and issue ADRs to
you.
It will only exercise rights if you pay it the exercise price and any other
charges the rights require you to pay.
U.S.
securities laws may restrict the sale, deposit, cancellation and transfer of
the
ADRs issued after exercise of rights. For example, you may not be able to trade
the ADRs freely in the U.S. In this case, The Bank of New York Mellon may issue
the ADRs under a separate restricted deposit agreement which will contain the
same provisions as the agreement, except for the changes needed to put the
restrictions in place.
Other
Distributions.
The
Bank of New York Mellon will send to you anything else we distribute on
deposited securities by any means it thinks is legal, fair and practical. If
it
cannot make the distribution in that way, The Bank of New York Mellon has a
choice. It may decide to sell what we distributed and distribute the net
proceeds in the same way as it does with cash or it may decide to hold what
we
distributed, in which case the ADRs will also represent the newly distributed
property.
The
Bank
of New York Mellon is not responsible if it decides that it is unlawful or
impractical to make a distribution available to any ADR holders. We have no
obligation to register ADRs, shares, rights or other securities under the
Securities Act. We also have no obligation to take any other action to permit
the distribution of ADRs, shares, rights or anything else to ADR holders. This
means that you may not receive the distribution we make on our shares or any
value for them if it is illegal or impractical for us to make them available
to
you.
Deposit,
Withdrawal and Cancellation
The
Bank
of New York Mellon will issue ADRs if you or your broker deposit shares or
evidence of rights to receive shares with the custodian upon payment of its
fees
and expenses and of any taxes or charges, such as stamp taxes or stock transfer
taxes or fees. The Bank of New York Mellon will register the appropriate number
of ADRs in the names you request and will deliver the ADRs at its office to
the
persons you request.
You
may
turn in your ADRs at The Bank of New York Mellon’s office. Upon payment of its
fees and expenses and of any taxes or charges, such as stamp taxes or stock
transfer taxes or fees, The Bank of New York Mellon will deliver (1) the
underlying shares to an account designated by you and (2) any other deposited
securities underlying the ADR at the office of the custodian; or, at your
request, risk and expense, The Bank of New York Mellon will deliver the
deposited securities at its office.
-7-
Voting
Rights
You
may
instruct The Bank of New York Mellon to vote the shares underlying your ADRs
but
only if we ask The Bank of New York Mellon to ask for your instructions.
Otherwise, you won’t be able to exercise your right to vote unless you withdraw
the shares. However, you may not know about the meeting enough in advance to
withdraw the shares.
If
we ask
for your instructions, The Bank of New York Mellon will notify you of the
upcoming vote and arrange to deliver our voting materials to you. The materials
will (1) describe the matters to be voted on and (2) explain how you, on a
certain date, may instruct The Bank of New York Mellon to vote the shares or
other deposited securities underlying your ADRs as you direct. For instructions
to be valid, The Bank of New York Mellon must receive them on or before the
date
specified. The Bank of New York Mellon will try, as far as practical, subject
to
Israeli law and the provisions of our Articles of Association, to vote or to
have its agents vote the shares or other deposited securities as you instruct.
The Bank of New York Mellon will only vote or attempt to vote as you instruct.
However, if The Bank of New York Mellon does not receive your voting
instructions, it will deem you to have instructed it to give a discretionary
proxy to vote the shares underlying your ADRs to a person designated by us
provided that no such instruction shall be deemed given and no such
discretionary proxy shall be given with respect to any matter as to which we
inform The Bank of New York Mellon that (x) we do not wish such proxy given,
(y)
substantial opposition exists, (z) such matter materially affects the rights
of
the holders of the shares underlying the ADRs.
We
cannot
assure you that you will receive the voting materials in time to ensure that
you
can instruct The Bank of New York Mellon to vote your shares. In addition,
The
Bank of New York Mellon and its agents are not responsible for failing to carry
out voting instructions or for the manner of carrying out voting instructions.
This means that you may not be able to exercise your right to vote and there
may
be nothing you can do if your shares are not voted as you
requested.
Rights
of Non-Israeli Shareholders to Vote
Our
ADSs
may be freely held and traded pursuant to the General Permit and the Currency
Control Law. The ownership or voting of ADSs by non-residents of Israel is
not
restricted in any way by our Articles of Association or by the laws of the
State
of Israel.
Fees
and Expenses
|
ADR
holders must pay:
|
|
For:
|
|
$5.00
(or less) per 100 ADSs
(or
portion thereof)
|
|
Each
issuance of an ADS, including as a result of a distribution of shares
or
rights or other property.
Each
cancellation of an ADS, including if the agreement
terminates.
|
|
$0.02
(or less) per ADS
|
|
Any
cash payment.
|
|
Registration
or Transfer Fees
|
|
Transfer
and registration of shares on the share register of the Foreign Registrar
from your name to the name of The Bank of New York Mellon or its
agent
when you deposit or withdraw shares.
|
|
Expenses
of The Bank of New York Mellon
|
|
Conversion
of foreign currency to U.S. dollars.
Cable,
telex and facsimile transmission expenses.
Servicing
of shares or deposited securities.
|
|
$0.02
(or less) per ADS per calendar year (if the depositary has not collected
any cash distribution fee during that year)
|
|
Depositary
services.
|
|
Taxes
and other governmental charges
|
|
As
necessary The Bank of New York Mellon or the Custodian have to pay
on any
ADR or share underlying an ADR, for example, stock transfer taxes,
stamp
duty or withholding taxes.
|
|
A
fee equivalent to the fee that would be payable if securities distributed
to you had been ordinary shares and the ordinary shares had been
deposited
for issuance of ADSs
|
|
Distribution
of securities distributed to holders of deposited securities which
are
distributed by the depositary to ADR
holders.
|
-8-
Payment
of Taxes
You
will
be responsible for any taxes or other governmental charges payable on your
ADRs
or on the deposited securities underlying your ADRs. The Bank of New York Mellon
may refuse to transfer your ADRs or allow you to withdraw the deposited
securities underlying your ADRs until such taxes or other charges are paid.
It
may apply payments owed to you or sell deposited securities underlying your
ADRs
to pay any taxes owed and you will remain liable for any deficiency. If it
sells
deposited securities, it will, if appropriate, reduce the number of ADRs to
reflect the sale and pay to you any proceeds, or send to you any property,
remaining after it has paid the taxes.
Reclassifications,
Recapitalizations and Mergers
|
If
we:
|
|
Then:
|
|
Change
the nominal or par value of our shares;
|
|
The
cash, shares or other securities received by The Bank of New York
Mellon
will become deposited securities. Each ADR will automatically represent
its equal share of the new deposited securities. The Bank of New
York
Mellon may, and will if we ask it to, distribute some or all of the
cash,
shares or other securities it received. It may also issue new ADRs
or ask
you to surrender your outstanding ADRs in exchange for new ADRs,
identifying the new deposited securities.
|
|
Reclassify,
split up or consolidate any of the deposited securities;
|
|
|
|
Distribute
securities on the shares that are not distributed to you;
or
|
|
|
|
|
|
|
|
Recapitalize,
reorganize, merge, liquidate, sell all or substantially all of our
assets,
or takes any similar action.
|
|
|
Amendment
and Termination
We
may
agree with The Bank of New York Mellon to amend the agreement and the ADRs
without your consent for any reason. If the amendment adds or increases fees
or
charges, except for taxes and other governmental charges or registration fees,
cable, telex or facsimile transmission costs, delivery costs or other such
expenses, or prejudices an important right of ADR holders, it will only become
effective thirty days after The Bank of New York Mellon notifies you of the
amendment. At the time an amendment becomes effective, you are considered,
by
continuing to hold your ADR, to agree to the amendment and to be bound by the
ADRs and the agreement is amended.
The
Bank
of New York Mellon will terminate the agreement if we ask it to do so. The
Bank
of New York Mellon may also terminate the agreement if The Bank of New York
Mellon has told us that it would like to resign and we have not appointed a
new
depositary bank within ninety days. In both cases, The Bank of New York Mellon
must notify you at least ninety days before termination.
After
termination, The Bank of New York Mellon and its agents will be required to
do
only the following under the agreement: (1) advise you that the agreement is
terminated, and (2) collect distributions on the deposited securities and
deliver shares and other deposited securities upon cancellation of ADRs. After
termination, The Bank of New York Mellon will, if practical, sell any remaining
deposited securities by public or private sale. After that, The Bank of New
York
Mellon will hold the proceeds of the sale, as well as any other cash it is
holding under the agreement for the pro rata benefit of the ADR holders that
have not surrendered their ADRs. It will not invest the money and will have
no
liability for interest. The Bank of New York Mellon’s only obligations will be
to account for the proceeds of the sale and other cash. After termination our
only obligations will be with respect to indemnification and to pay certain
amounts to The Bank of New York Mellon.
-9-
Limitations
on Obligations and Liability to ADR Holders
The
agreement expressly limits our obligations and the obligations of The Bank
of
New York Mellon, and it limits our liability and the liability of The Bank
of
New York Mellon. We and The Bank of New York Mellon:
| · |
are
only obligated to take the actions specifically set forth in the
agreement
without negligence or bad faith;
|
|
| · |
are
not liable if either is prevented or delayed by law or circumstances
beyond their control from performing their obligations under the
agreement;
|
|
| · | are not liable if either exercises discretion permitted under the agreement; | |
| · |
have
no obligation to become involved in a lawsuit or other proceeding
related
to the ADRs or the agreement on your behalf or on behalf of any other
party; and
|
|
| · |
may
rely upon any documents they believe in good faith to be genuine
and to
have been signed or presented by the proper
party.
|
In
the
agreement, we and The Bank of New York Mellon agree to indemnify each other
under certain circumstances.
Requirements
for Depositary Actions
Before
The Bank of New York Mellon will issue or register transfer of an ADR, make
a
distribution on an ADR, or make a withdrawal of shares, The Bank of New York
Mellon may require payment of stock transfer or other taxes or other
governmental charges and transfer or registration fees charged by third parties
for the:
| · |
transfer
of any shares or other deposited securities;
|
|
| · |
production
of satisfactory proof of the identity and genuineness of any signature
or
other information it deems necessary, and
|
|
| · |
compliance
with regulations it may establish, from time to time, consistent
with the
agreement, including presentation of transfer
documents.
|
The
Bank
of New York Mellon may refuse to deliver, transfer, or register transfers of
ADRs generally when the books of The Bank of New York Mellon or our books are
closed, or at any time if The Bank of New York Mellon or we think it advisable
to do so. You have the right to cancel your ADRs and withdraw the underlying
shares at any time except:
| · |
when
temporary delays arise because: (1) The Bank of New York Mellon
or we have
closed its transfer books; (2) the transfer of shares is blocked
to permit
voting at a shareholders’ meeting; or (3) we are paying a dividend on the
shares; or
|
|
| · |
when
it is necessary to prohibit withdrawals in order to comply with
any laws
or governmental regulations that apply to ADRs or to the withdrawal
of
shares or other deposited
securities.
|
This
right of withdrawal may not be limited by any other provision of the
agreement.
Pre-Release
of ADRs
In
certain circumstances, subject to the provisions of the agreement, The Bank
of
New York Mellon may issue ADRs before deposit of the underlying shares. This
is
called a pre-release of the ADR. The Bank of New York Mellon may also deliver
shares upon cancellation of pre-released ADRs (even if the ADRs are cancelled
before the pre-release transaction has been closed out). A pre-release is closed
out as soon as the underlying shares are delivered to The Bank of New York
Mellon. The Bank of New York Mellon may receive ADRs instead of shares to close
out a pre-release. The Bank of New York Mellon may pre-release ADRs only under
the following conditions: (1) before or at the time of the pre-release, the
person to whom the pre-release is being made must represent to The Bank of
New
York Mellon in writing that it or its customer owns the shares or ADRs to be
deposited; (2) the pre-release must be fully collateralized with cash or other
collateral that The Bank of New York Mellon considers appropriate; and (3)
The
Bank of New York Mellon must be able to close out the pre-release on not more
than five business days’ notice. In addition, The Bank of New York Mellon will
limit the number of ADRs that may be outstanding at any time as a result of
pre-release, although The Bank of New York Mellon may disregard the limit from
time to time, if it thinks it is appropriate to do so.
-10-
Inspection
of Books of the Depositary
Under
the
terms of the agreement, holders of ADRs may inspect the transfer books of the
depositary at any reasonable time, provided that such inspection shall not
be
for the purpose of communicating with holders of ADRs in the interest of a
business or object other than either our business or a matter related to the
deposit agreement or ADRs.
Book-Entry
Only Issuance - The Depository Trust Company
The
Depository Trust Company, or DTC, New York, New York, will act as securities
depository for the ADRs. The ADRs will be represented by one global security
that will be deposited with and registered in the name of Cede & Co. (DTC’s
partnership nominee), or such other name as may be requested by an authorized
representative of DTC. This means that we will not issue certificates to you
for
the ADRs. One global security will be issued to DTC, which will keep a
computerized record of its participants (for example, your broker) whose clients
have purchased the ADRs. Each participant will then keep a record of its
clients. Unless it is exchanged in whole or in part for a certificated security,
a global security may not be transferred. However, DTC, its nominees, and their
successors may transfer a global security as a whole to one another. Beneficial
interests in the global security will be shown on, and transfers of the global
security will be made only through, records maintained by DTC and its
participants.
DTC
is a
limited-purpose trust company organized under the New York Banking Law, a
“banking organization” within the meaning of the New York Banking Law, a member
of the United States Federal Reserve System, a “clearing corporation” within the
meaning of the New York Uniform Commercial Code and a “clearing agency”
registered under the provisions of Section 17A of the Exchange Act . DTC
holds securities that its participants (direct participants) deposit with DTC.
DTC also records the settlement among direct participants of securities
transactions, such as transfers and pledges, in deposited securities through
computerized records for direct participant’s accounts. This eliminates the need
to exchange certificates. Direct participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations.
DTC’s
book-entry system is also used by other organizations such as securities brokers
and dealers, banks and trust companies that work through a direct participant.
The rules that apply to DTC and its participants are on file with the
SEC.
DTC
is a
wholly-owned subsidiary of The Depository Trust & Clearing Corporation, or
DTCC. DTCC is, in turn, owned by a number of DTC’s direct participants and by
the New York Stock Exchange, Inc., the American Stock Exchange, Inc.
and the National Association of Securities Dealers, Inc.
When
you
purchase ADRs through the DTC system, the purchases must be made by or through
a
direct participant, who will receive credit for the ADRs on DTC’s records. Since
you actually own the ADRs, you are the beneficial owner and your ownership
interest will only be recorded on the direct (or indirect) participants’
records. DTC has no knowledge of your individual ownership of the ADRs. DTC’s
records only show the identity of the direct participants and the amount of
ADRs
held by or through them. You will not receive a written confirmation of your
purchase or sale or any periodic account statement directly from DTC. You will
receive these from your direct (or indirect) participant. Thus the direct (or
indirect) participants are responsible for keeping accurate account of the
holdings of their customers like you.
-11-
We
will
wire dividend payments to DTC’s nominee, and we will treat DTC’s nominee as the
owner of the global security for all purposes. Accordingly, we will have no
direct responsibility or liability to pay amounts due on the global security
to
you or any other beneficial owners in the global security.
Any
redemption notices will be sent by us directly to DTC, who will in turn inform
the direct participants, who will then contact you as a beneficial
holder.
It
is
DTC’s current practice, upon receipt of any payment of dividends or liquidation
amount, to credit direct participants’ accounts on the payment date based on
their holdings of beneficial interests in the global securities as shown on
DTC’s records. In addition, it is DTC’s current practice to assign any
consenting or voting rights to direct participants whose accounts are credited
with preferred securities on a record date, by using an omnibus proxy. Payments
by participants to owners of beneficial interests in the global securities,
and
voting by participants, will be based on the customary practices between the
participants and owners of beneficial interests, as is the case with the ADRs
held for the account of customers registered in “street name.” However, payments
will be the responsibility of the participants and not of DTC or
us.
ADRs
represented by a global security will be exchangeable for certificated
securities with the same terms in authorized denominations only if:
| · |
DTC
is unwilling or unable to continue as depositary or if DTC ceases
to be a
clearing agency registered under applicable law and a successor
depositary
is not appointed by us within 90 days; or
|
| · |
we
determine not to require all of the ADRs to be represented by a
global
security.
|
If
the
book-entry only system is discontinued, the transfer agent will keep the
registration books for the ADRs at its corporate office.
The
information in this section concerning DTC and DTC’s book-entry system has been
obtained from sources we believe to be reliable, but we take no responsibility
for the accuracy thereof.
-12-
DESCRIPTION
OF ORDINARY
SHARES
Rights
Attached to Ordinary Shares
Our
authorized share capital consists of 500,000,000 ordinary shares, par value
NIS
0.02 per share.
Holders
of ordinary shares have one vote per share, and are entitled to participate
equally in the payment of dividends and share distributions and, in the event
of
our liquidation, in the distribution of assets after satisfaction of liabilities
to creditors. No preferred shares are currently authorized. All outstanding
ordinary shares are validly issued and fully paid.
Transfer
of Shares
Fully
paid ordinary shares are issued in registered form and may be freely transferred
under our Articles of Association unless the transfer is restricted or
prohibited by another instrument or applicable securities laws.
Dividend
and Liquidation Rights
We
may
declare a dividend to be paid to the holders of ordinary shares according to
their rights and interests in our profits. In the event of our liquidation,
after satisfaction of liabilities to creditors, our assets will be distributed
to the holders of ordinary shares in proportion to the nominal value of their
holdings.
This
right may be affected by the grant of preferential dividend or distribution
rights, to the holders of a class of shares with preferential rights that may
be
authorized in the future. Under the Israeli Companies Law, the declaration
of a
dividend does not require the approval of the shareholders of the company,
unless the company's articles of association require otherwise. Our Articles
provide that the Board of Directors may declare and distribute dividends without
the approval of the shareholders.
Annual
and Extraordinary General Meetings
We
must
hold our annual general meeting of shareholders each year no later than 15
months from the last annual meeting, at a time and place determined by the
Board
of Directors, upon at least 21 days’ prior notice to our shareholders to which
we need to add additional three days for notices sent outside of Israel. A
special meeting may be convened by request of two directors, 25% of the
directors then in office, one or more shareholders holding at least 5% of our
issued share capital and at least 1% of our issued voting rights, or one or
more
shareholders holding at least 5% of our issued voting rights. Notice of a
general meeting must set forth the date, time and place of the meeting. Such
notice must be given at least 21 days but not more than 45 days prior to the
general meeting. The quorum required for a meeting of shareholders consists
of
at least two shareholders present in person or by proxy who hold or represent
between them at least one-third of the voting rights in the company. A meeting
adjourned for lack of a quorum generally is adjourned to the same day in the
following week at the same time and place (with no need for any notice to the
shareholders) or until such other later time if such time is specified in the
original notice convening the general meeting, or if we serve notice to the
shareholders no less than seven days before the date fixed for the adjourned
meeting. If at an adjourned meeting there is no quorum present half an hour
after the time set for the meeting, any number participating in the meeting
shall represent a quorum and shall be entitled to discuss the matters set down
on the agenda for the original meeting. All shareholders who are registered
in
our registrar on the record date, or who will provide us with proof of ownership
on that date as applicable to the relevant registered shareholder, are entitled
to participate in a general meeting and may vote as described in “Voting Rights”
and “Voting by Proxy and in Other Manners,” below.
Voting
Rights
Our
ordinary shares do not have cumulative voting rights in the election of
directors. As a result, the holders of ordinary shares that represent more
than
50% of the voting power represented at a shareholders meeting in which a quorum
is present have the power to elect all of our directors, except the external
directors whose election requires a special majority.
-13-
Holders
of ordinary shares have one vote for each ordinary share held on all matters
submitted to a vote of shareholders. Shareholders may vote in person or by
proxy. These voting rights may be affected by the grant of any special voting
rights to the holders of a class of shares with preferential rights that may
be
authorized in the future.
Under
the
Israeli Companies Law, unless otherwise provided in the Articles of Association
or by applicable law, all resolutions of the shareholders require a simple
majority. Our Articles of Association provide that all decisions may be made
by
a simple majority.
Voting
by Proxy and in Other Manners
Our
Articles of Association enable a shareholder to appoint a proxy, who need not
be
a shareholder, to vote at any shareholders meeting. We require that the
appointment of a proxy be in writing signed by the person making the appointment
or by an attorney authorized for this purpose, and if the person making the
appointment is a corporation, by a person or persons authorized to bind the
corporation. In the document appointing a proxy, each shareholder may specify
how the proxy should vote on any matter presented at a shareholders meeting.
The
document appointing the proxy shall be deposited in our offices or at such
other
address as shall be specified in the notice of the meeting not less than 48
hours before the time of the meeting at which the person specified in the
appointment is due to vote.
The
Israeli Companies Law and our Articles of Association do not permit resolutions
of the shareholders to be adopted by way of written consent, for as long as
our
ordinary shares are publicly traded.
Limitations
on the Rights to Own Securities
The
ownership or voting of ordinary shares by non-residents of Israel is not
restricted in any way by our Articles of Association or the laws of the State
of
Israel, except that nationals of countries which are, or have been, in a state
of war with Israel may not be recognized as owners of ordinary
shares.
Anti-Takeover
Provisions under Israeli Law
The
Israeli Companies Law permits merger transactions with the approval of each
party’s board of directors and shareholders. In accordance with the Israeli
Companies Law, a merger may be approved at a shareholders meeting by a majority
of the voting power represented at the meeting, in person or by proxy, and
voting on that resolution. In determining whether the required majority has
approved the merger, shares held by the other party to the merger, any person
holding at least 25% of the outstanding voting shares or means of appointing
the
board of directors of the other party to the merger, or the relatives or
companies controlled by these persons, are excluded from the vote.
Under
the
Israeli Companies Law, a merging company must inform its creditors of the
proposed merger. Any creditor of a party to the merger may seek a court order
blocking the merger, if there is a reasonable concern that the surviving company
will not be able to satisfy all of the obligations of the parties to the merger.
Moreover, a merger may not be completed until at least 30 days have passed
from
the time the merger was approved in a general meeting of each of the merging
companies, and at least 50 days have passed from the time that a merger proposal
was filed with the Israeli Registrar of Companies.
Israeli
corporate law provides that an acquisition of shares in a public company must
be
made by means of a tender offer if, as a result of such acquisition, the
purchaser would become a 25% or greater shareholder of the company. This rule
does not apply if there is already another shareholder with 25% or greater
shares in the company. Similarly, Israeli corporate law provides that an
acquisition of shares in a public company must be made by means of a tender
offer if, as a result of the acquisition, the purchaser's shareholdings would
entitle the purchaser to over 45% of the shares in the company, unless there
is
a shareholder with 45% or more of the shares in the company. These requirements
do not apply if, in general, the acquisition (1) was made in a private placement
that received the approval of the company’s shareholders; (2) was from a 25% or
greater shareholder of the company which resulted in the purchaser becoming
a
25% or greater shareholder of the company, or (3) was from a 45% or greater
shareholder of the company which resulted in the acquirer becoming a 45% or
greater shareholder of the company. These rules do not apply if the acquisition
is made by way of a merger. Regulations promulgated under the Israeli Companies
Law provide that these tender offer requirements do not apply to companies
whose
shares are listed for trading external of Israel if, according to the law in
the
country in which the shares are traded, including the rules and regulations
of
the stock exchange or which the shares are traded, either:
-14-
|
·
|
there
is a limitation on acquisition of any level of control of the company;
or
|
|
·
|
the
acquisition of any level of control requires the purchaser to do
so by
means of a tender offer to the
public.
|
The
Israeli Companies Law provides specific rules and procedures for the acquisition
of shares held by minority shareholders, if the majority shareholder holds
more
than 90% of the outstanding shares. If, as a result of an acquisition of shares,
the purchaser will hold more than 90% of a company’s outstanding shares, the
acquisition must be made by means of a tender offer for all of the outstanding
shares. If less than 5% of the outstanding shares are not tendered in the tender
offer, all the shares that the purchaser offered to purchase will be transferred
to it. The Israeli Companies Law provides for appraisal rights if any
shareholder files a request in court within three months following the
consummation of a full tender offer. If more than 5% of the outstanding shares
are not tendered in the tender offer, then the purchaser may not acquire shares
in the tender offer that will cause his shareholding to exceed 90% of the
outstanding shares of the company. Israeli tax law treats specified
acquisitions, including a stock-for-stock swap between an Israeli company and
a
foreign company, less favorably than does US tax law. These laws may have the
effect of delaying or deterring a change in control of us, thereby limiting
the
opportunity for shareholders to receive a premium for their shares and possibly
affecting the price that some investors are willing to pay for our
securities.
Rights
of Shareholders
Under
the
Israeli Companies Law, our shareholders have the right to inspect certain
documents and registers including the minutes of general meetings, the register
of shareholders and the register of substantial shareholders, any document
held
by us that relates to an act or transaction requiring the consent of the general
meeting, our Articles of Association and our financial statements, and any
other
document which we are required to file under the Israeli Companies Law or under
any law with the Registrar of Companies or the Israeli Securities Authority,
and
is available for public inspection at the Registrar of Companies or the
Securities Authority, as the case may be.
If
the
document required for inspection by one of our shareholders relates to an act
or
transaction requiring the consent of the general meeting as stated above, we
may
refuse the request of the shareholder if in our opinion the request was not
made
in good faith, the documents requested contain a commercial secret or a patent,
or disclosure of the documents could prejudice our good in some other
way.
The
Israeli Companies Law provides that with the approval of the court any of our
shareholders or directors may file a derivative action on our behalf if the
court finds the action is a priori, to our benefit, and the person demanding
the
action is acting in good faith. The demand to take action can be filed with
the
court only after it is serviced to us, and we decline or omit to act in
accordance to this demand.
Enforceability
of Civil Liabilities
We
are
incorporated in Israel and some of our directors and officers and the Israeli
experts named in this report reside outside the US. Service of process upon
them
may be difficult to effect within the US. Furthermore, because substantially
all
of our assets, and those of our non-US directors and officers and the Israeli
experts named herein, are located outside the US, any judgment obtained in
the
US against us or any of these persons may not be collectible within the US.
We
have
been informed by our legal counsel in Israel, Kantor & Co., that there is
doubt as to the enforceability of civil liabilities under the Securities Act
or
the Exchange Act, pursuant to original actions instituted in Israel. However,
subject to particular time limitations, executory judgments of a US court for
monetary damages in civil matters may be enforced by an Israeli court, provided
that:
|
·
|
the
judgment was obtained after due process before a court of competent
jurisdiction, that recognizes and enforces similar judgments of Israeli
courts, and the court had authority according to the rules of private
international law currently prevailing in
Israel;
|
-15-
|
·
|
adequate
service of process was effected and the defendant had a reasonable
opportunity to be heard;
|
|
·
|
the
judgment is not contrary to the law, public policy, security
or
sovereignty of the State of Israel and its enforcement is not
contrary to
the laws governing enforcement of
judgments;
|
|
·
|
the
judgment was not obtained by fraud and does not conflict
with any other
valid judgment in the same matter between the same
parties;
|
|
·
|
the
judgment is no longer appealable;
and
|
|
·
|
an
action between the same parties in the same matter is
not pending in any
Israeli court at the time the lawsuit is instituted in
the foreign court.
|
We
have
irrevocably appointed XTL Biopharmaceuticals, Inc., our US subsidiary,
as our
agent to receive service of process in any action against us in any
US federal
court or the courts of the State of New
York.
Foreign
judgments enforced by Israeli courts generally will be payable in Israeli
currency. The usual practice in an action before an Israeli court to recover
an
amount in a non-Israeli currency is for the Israeli court to render judgment
for
the equivalent amount in Israeli currency at the rate of exchange in force
on
the date of the judgment. Under existing Israeli law, a foreign judgment payable
in foreign currency may be paid in Israeli currency at the rate of exchange
for
the foreign currency published on the day before date of payment. Current
Israeli exchange control regulations also permit a judgment debtor to make
payment in foreign currency. Pending collection, the amount of the judgment
of
an Israeli court stated in Israeli currency ordinarily may be linked to Israel’s
consumer price index plus interest at the annual statutory rate set by Israeli
regulations prevailing at that time. Judgment creditors must bear the risk
of
unfavorable exchange rates.
-16-
PLAN
OF DISTRIBUTION
We
may
sell the securities covered in this prospectus in any of three ways (or in
any
combination):
| · |
through
underwriters or dealers;
|
|
·
|
directly
to a limited number of purchasers or to a single purchaser;
or
|
|
·
|
through
agents.
|
Each
time
that we use this prospectus to sell securities, we will also provide a
prospectus supplement that contains the specific terms of the offering. The
prospectus supplement will set forth the terms of the offering of the
securities, including:
| · |
the
name or names of any underwriters, dealers or agents and the amounts
of
ordinary shares underwritten or purchased by each of them;
and
|
|
·
|
the
public offering price of the ordinary shares and the proceeds to
us and
any discounts, commissions or concessions allowed or reallowed
or paid to
dealers.
|
Any
public offering price and any discounts or concessions allowed or reallowed
or
paid to dealers may be changed from time to time.
If
underwriters are used in the sale of any securities, the securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at
a
fixed public offering price or at varying prices determined at the time of
sale.
The securities may be either offered to the public through underwriting
syndicates represented by managing underwriters, or directly by underwriters.
Generally, the underwriters’ obligations to purchase the securities will be
subject to certain conditions precedent. The underwriters will be obligated
to
purchase all of the securities if they purchase any of securities.
We
may
sell the securities through agents from time to time. The prospectus supplement
will name any agent involved in the offer or sale of the securities and any
commissions we pay to them. Generally, any agent will be acting on a best
efforts basis for the period of its appointment.
We
may
authorize underwriters, dealers or agents to solicit offers by certain
purchasers to purchase the securities from us at the public offering price
set
forth in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. The
contracts will be subject only to those conditions set forth in the prospectus
supplement, and the prospectus supplement will set forth any commissions we
pay
for solicitation of these contracts.
Agents
and underwriters may be entitled to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act of 1933, as amended,
or to contribution with respect to payments which the agents or underwriters
may
be required to make in respect thereof. Agents and underwriters may be customers
of, engage in transactions with, or perform services for us in the ordinary
course of business.
We
may
enter into derivative transactions with third parties, or sell securities not
covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in connection
with those derivatives, the third parties may sell securities covered by this
prospectus and the applicable prospectus supplement, including in short sale
transactions. If so, the third party may use securities pledged by us or
borrowed from us or others to settle those sales or to close out any related
open borrowings of securities, and may use securities received from us in
settlement of those derivatives to close out any related open borrowings of
securities. The third party in such sale transactions will be an underwriter
and
will be identified in the applicable prospectus supplement (or a post-effective
amendment).
In
addition to these arrangements, we may enter into new licensing or servicing
arrangements under which we may issue ordinary shares, in the form of ADRs.
Prior to any such issuance, we will file a prospectus supplement to this
prospectus that will provide the details of any such license or servicing
arrangement.
-17-
INDEMNIFICATION
FOR LIABILITIES
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers, or persons controlling the registrant pursuant
to the foregoing provisions, the registrant has been informed that in the
opinion of the SEC such indemnification is against public policy as expressed
in
the Securities Act and is therefore unenforceable.
Our
legal
advisers are Alston & Bird LLP, 90 Park Avenue, New York, New York 10016,
United States of America, and Kantor & Co., Oz House, 14 Abba Hilel Silver
(12th Floor), Ramat Gan 52506, State of Israel.
The
financial statements of XTL Biopharmaceuticals Ltd. as of December 31, 2007
and
2006, and for each of the years in the three-year period ended December 31,
2007
and for the period from March 9, 1993 (inception) to December 31, 2007 included
in this prospectus on Form F−3 have been so included in reliance on the report
of Kesselman & Kesselman, a member of PricewaterhouseCoopers International
Limited, an independent registered public accounting firm, Trade Tower, 25
Hamered Street, Tel Aviv 68125, Israel, except with respect to the period from
March 9, 1993 to December 31, 2000 which is included in reliance on the report
of Somekh Chaikin a member firm of KPMG International, an independent registered
public accounting firm, KPMG Millennium Tower, 17 Ha’arba’a Street, Tel Aviv,
64739, Israel, which reports are incorporated by reference herein and upon
the
authority of said firms as experts in auditing and accounting.
-18-
PROSPECTUS
,
2008
80,000,000
Ordinary
Shares
(in
the form of 8,000,000 American Depositary Shares)
XTL
Biopharmaceuticals Ltd.
__________________
-19-
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
ITEM
8. INDEMNIFICATION
OF DIRECTORS AND OFFICERS.
Israeli
law permits a company to insure an office holder in respect of liabilities
incurred by him or her as a result of an act or omission in the capacity of
an
office holder for:
| · |
A
breach of the office holder’s duty of care to the company or to another
person;
|
|
·
|
a
breach of the office holder’s fiduciary duty to the company, provided that
he or she acted in good faith and had reasonable cause to believe
that the
act would not prejudice the company; and
|
|
·
|
A
financial liability imposed upon the office holder in favor of
another
person.
|
Moreover,
a company can indemnify an office holder for any of the following obligations
or
expenses incurred in connection with the acts or omissions of such person in
his
or her capacity as an office holder:
| · |
monetary
liability imposed upon him or her in favor of a third party by
a judgment,
including a settlement or an arbitral award confirmed by the court;
and
|
|
·
|
reasonable
litigation expenses, including attorneys’ fees, actually incurred by the
office holder or imposed upon him or her by a court, in a proceeding
brought against him or her by or on behalf of the company or by
a third
party, or in a criminal action in which he or she was acquitted,
or in a
criminal action which does not require criminal intent in which
he or she
was convicted; furthermore, a company can, with a limited exception,
exculpate an office holder in advance, in whole or in part, from
liability
for damages sustained by a breach of duty of care to the
company.
|
The
Registrant’s Articles of Association allow for insurance, exculpation and
indemnification of office holders to the fullest extent permitted by law. The
Registrant has entered into indemnification, insurance and exculpation
agreements with its directors and executive officers, following shareholder
approval of these agreements. The Registrant has directors’ and officers’
liability insurance covering its officers and directors for a claim imposed
upon
them as a result of an action carried out while serving as an officer or
director, for (a) the breach of duty of care towards the Registrant or towards
another person, (b) the breach of fiduciary duty towards the Registrant,
provided that the officer or director acted in good faith and had reasonable
grounds to assume that the action would not harm the Registrant’s interests, and
(c) a monetary liability imposed upon him in favor of a third party.
II-1
ITEM
9. EXHIBITS.
|
Exhibit
Number
|
Description
|
|
|
5.1
|
Opinion
of Kantor & Co. Regarding Legality of Shares*
|
|
|
23.1
|
Consent
of Kesselman & Kesselman, a member of PricewaterhouseCoopers
International Limited, dated August 14, 2008.
|
|
|
23.2
|
Consent
of Somekh Chaikin, a member firm of KPMG International, dated August
14,
2008.
|
|
|
23.3
|
Consent
of Kantor & Co. (included in Exhibit 5.1)*
|
|
|
24.1
|
Power
of Attorney (included on the signature page to this Registration
Statement)
|
* To
be
filed by amendment or as an exhibit to a document to be incorporated by
reference herein in connection with an offering of our securities.
II-2
ITEM
10. UNDERTAKINGS.
A.
Rule
415 Offering
The
undersigned registrant hereby undertakes:
(1) To
file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
| (i) |
To
include any prospectus required by Section 10(a)(3) of the Securities
Act
of 1933;
|
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent
a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease
in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant
to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate
offering
price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
and
|
|
(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement.
|
(2)
That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3)
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4)
To
file a post-effective amendment to the registration statement to include any
financial statements required by Item 8.A. of Form 20-F at the start of any
delayed offering or throughout a continuous offering.
(5)
That,
for the purpose of determining liability under the Securities Act of 1933 to
any
purchaser:
|
(A)
|
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be
deemed to be part of the Registration Statement as of the date the
filed
prospectus was deemed part of and included in the Registration Statement;
and
|
|
(B)
|
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5),
or
(b)(7) as part of a Registration Statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii),
or (x)
for the purpose of providing the information required by Section
10(a) of
the Securities Act of 1933 shall be deemed to be part of and included
in
the Registration Statement as of the earlier of the date such form
of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the
issuer
and any person that is at that date an underwriter, such date shall
be
deemed to be a new effective date of the Registration Statement relating
to the securities in the Registration Statement to which that prospectus
relates, and the offering of such securities at that time shall be
deemed
to be the initial bona fide offering thereof. Provided, however,
that no
statement made in a Registration Statement or prospectus that is
part of
the Registration Statement or made in a document incorporated or
deemed
incorporated by reference into the Registration Statement or prospectus
that is part of the Registration Statement will, as to the purchaser
with
a time of contract of sale prior to such effective date, supersede
or
modify any statement that was made in the Registration Statement
or
prospectus that was part of the Registration Statement or made in
any such
document immediately prior to such effective
date.
|
II-3
(6)
That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of securities
of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
| i. |
Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
|
| ii. |
Any
free writing prospectus relating to the offering prepared by or
on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
| iii. |
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant
or its
securities provided by or on behalf of the undersigned registrant;
and
|
| iv. |
Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
B.
Subsequent
Documents Incorporated By Reference
The
undersigned registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is
incorporated by reference in the registration statement shall be deemed to
be a
new registration statement relating to the Securities offered therein, and
the
offering of such Securities at that time shall be deemed to be the initial
bona
fide offering thereof.
H.
Indemnification
of Officers, Directors and Controlling Persons
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In
the
event that a claim for indemnification against such liabilities (other than
the
payment by the registrant of expenses incurred or paid by a director, officer
or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and
will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in Valley Cottage, New York, on August 15, 2008.
| XTL Biopharmaceuticals Ltd. | ||
| By: | /s/ Ron Bentsur | |
|
|
||
|
Ron
Bentsur
Chief
Executive Officer
|
||
POWER
OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints each of Ron Bentsur and Bill Kessler, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and his name, place and stead, in any and all
capacities, to sign any or all amendments (including pre-effective and
post-effective amendments) to this registration statement, and to file the
same,
with all exhibits thereto and other documents in connection therewith, including
any Registration Statement filed pursuant to Rule 462(b) under the Securities
Act of 1933, with the SEC, granting unto said attorney-in-fact and agent, full
power and authority to do and perform each and every act and thing requisite
and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all
that said attorney-in-fact and agent or any of his substitutes, may lawfully
do
or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities indicated
as of August 15, 2008.
|
Signatures
|
Title
|
|
|
/s/
Michael S. Weiss
|
Chairman
of the Board of Directors
|
|
|
Michael
S. Weiss
|
||
|
/s/
Ron Bentsur
|
Chief
Executive Officer
|
|
|
Ron
Bentsur
|
||
|
/s/
Bill Kessler
|
Director
of Finance
|
|
|
Bill
Kessler
|
(principal
financial and accounting officer)
|
|
|
/s/
William J. Kennedy, Ph.D
|
Non-executive
Director
|
|
|
William
J. Kennedy, Ph.D
|
||
|
/s/
Ben Zion Weiner Ph.D
|
Non-executive
Director
|
|
|
Ben
Zion Weiner Ph.D
|
||
|
Non-executive
Director
|
||
|
Samuel
H. Rudman
|
||
|
/s/
Laurence N. Charney
|
Non-executive
Director
|
|
|
Laurence
N. Charney
|
||
|
/s/
Ron Bentsur
|
Authorized
U.S. Representative
|
|
|
Ron
Bentsur
|
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
|
23.1
|
Consent
of Kesselman & Kesselman, a member of PricewaterhouseCoopers
International Limited, dated August 14, 2008.
|
|
|
23.2
|
Consent
of Somekh Chaikin, a member firm of KPMG International, dated August
14,
2008.
|