SB-2/A 1 w33351a4sbv2za.htm FORM SB-2 AMENDMENT #4 sbv2za
 

As filed with the Securities and Exchange Commission on September 10, 2007
Registration No. 333-144472
 
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
Pre-Effective
Amendment No. 4
Form SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
TOPSPIN MEDICAL, INC.
(Exact name of registrant as specified in its charter)
 
         
Delaware   3845   510394637
(State or other jurisdiction of
incorporation or organization) 		  (Primary Standard Industrial
Classification Code Number) 		  (I.R.S. Employer
Identification No.)
 
Global Park
2 Yodfat Street, Third Floor
North Industrial Area
Lod 71291
Israel
972-8-9200033
(Address and telephone number of principal executive office and principal place of business)
 
Corporation Service Company
2711 Centerville Road, Suite 400
Wilmington, DE 19808
1-800-927-9800
(Name, address, including zip code, and telephone number, including area code, of agent for service)
 
Copies to:
 
     
Robert B. Murphy, Esq. 
  Benjamin Strauss, Esq.
Pepper Hamilton LLP    Pepper Hamilton LLP
Hamilton Square   Hercules Plaza, Suite 5100
600 14th Street, N.W.   1313 Market Street
Washington, D.C. 20005   P.O. Box 1709
(202) 220-1200   Wilmington, DE 19899
Fax: (202) 318-6224   (302)777-6500
 
 
Approximate date of proposed sale to the public:  As soon as practicable after this registration statement becomes effective.
 
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, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.  þ
 
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) 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.  o
 
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o
 
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

 

 
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box.  o
 
                         
Title of Each Class of
 		          Proposed Maximum
 		    Proposed Maximum
 		    Amount of
Securities Being
 		    Amount to
    Offering
    Aggregate
    Registration
Registered     be Registered     Price per Share     Offering Price     Fee
Series 2 Warrants to Purchase Common Stock
    25,000,000     $0.20(1)     $5,000,000     $153.50*
6% Series A Convertible Bonds due November 30, 2009
    50,000,000 NIS     100%     $11,767,474(2)     $361.26*
Common Stock, par value $0.001
    84,523,809(3)     —(3)     —(3)     —(3)
Common Stock, par value $0.001
    59,523,809(4)     $0.20(5)     $11,904,761(5)     $365.48*
Common Stock, par value $0.001
    25,000,000(6)     $0.20(7)     $5,000,000(7)     $153.50*
Total Registration Fee
                      $1,103.74*
                         
 
 *  Previously paid.
 
(1) There is not currently any market for the Series 2 Warrants and no offering price for the Series 2 Warrants has yet been determined. Following the date of this prospectus, the Series 2 Warrants will be listed for trade on the Tel Aviv Stock Exchange and traded in that public market. While this registration is meant to effect the registration of the Series 2 Warrants, and not just the underlying shares, for purposes of calculating a registration fee, pursuant to Rule 457(g), the proposed maximum aggregate offering price has been designated as the price at which the Series 2 Warrants may be exercised (0.84 NIS). For the purpose of calculating the registration fee in U.S. Dollars, the NIS/Dollar exchange rate of 4.249 NIS for $1.00 has been used. This exchange rate is current as of June 29, 2007.
 
(2) Represents the proposed maximum offering price of the Convertible Bonds for offer and resale by the selling security holders pursuant to Rule 457(a). For the purpose of calculating the registration fee in U.S. Dollars, the NIS/Dollar exchange rate of 4.249 NIS for $1.00 has been used. This exchange rate is current as of June 29, 2007.
 
(3) Represents 59,523,809 shares of Common Stock associated with the resale of the Convertible Bonds and 25,000,000 shares associated with the Series 2 Warrants. Pursuant to Rule 457(i), no additional fee is required to be paid with respect to these shares.
 
(4) Represents 59,523,809 shares of Common Stock underlying the Convertible Bonds and registered for resale on behalf of the present holders.
 
(5) Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, based upon the average of the high and low prices of the Common Stock as reported on the Tel Aviv Stock Exchange on July 8, 2007. The average of the high and low prices of the Common Stock on July 8, 2007 was 0.862 NIS. For the purposes of calculating the registration fee in U.S. Dollars, 0.862 NIS has been converted so that 0.862 NIS equals $0.20.
 
(6) Represents 25,000,000 shares of Common Stock underlying the Series 2 Warrants that may be (i) registered for resale on behalf of the present holders or (ii) issued upon exercise by persons who purchase the Series 2 Warrants from the present holders through this registration statement.
 
(7) Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(g) under the Securities Act of 1933, as amended, based on the exercise price of the Series 2 Warrants, which is 0.84 NIS. For the purposes of calculating the registration fee in U.S. Dollars, 0.84 NIS has been converted so that 0.84 NIS equals $0.20.
 
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 Commission, acting pursuant to said Section 8(a), may determine.
 

 

EXPLANATORY NOTE
     Topspin Medical, Inc. has prepared this Amendment No. 4 to the Registration Statement on Form SB-2 (File No. 333-144472) for the sole purpose of filing with the Securities and Exchange Commission a revised fee table. Amendment No. 4 does not modify any provision of the prospectus that forms a part of the Registration Statement and accordingly such prospectus has not been included herein.

 

PART II
 
INFORMATION NOT REQUIRED IN PROSPECTUS
 
Item 24.  Indemnification of Directors and Officers.
 
We are a Delaware corporation. Article XII of our Certificate of Incorporation provides to the fullest extent permitted under the Delaware General Corporation Law (“DGCL”), that our directors or officers shall not be personally liable to us or our stockholders for damages for breach of such director’s or officer’s fiduciary duty. Section 145 of the DGCL provides that a corporation may indemnify directors, officers, employees and agents against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement in connection with specified actions, suits, or proceedings whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation — a “derivative action”), if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification is permitted only for expenses (including attorneys’ fees) incurred in connection with the defense or settlement of such action, and the statute requires court approval before there can be any indemnification for expenses where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s charter, bylaws, disinterested director vote, stockholder vote, agreement, or otherwise.
 
Section 23 of our Bylaws provides that we shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (an “Indemnitee”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he, or a person for whom he is the legal representative, is or was a director or officer of ours, or is or was serving at our written request as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees as incurred) reasonably incurred by him.
 
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
 
Item 25.  Other Expenses of Issuance and Distribution.
 
The following table sets forth the various expenses payable by us in connection with the sale and distribution of the securities offered in this offering. All of the amounts shown are estimated except for the Securities and Exchange Commission (the “SEC”) registration fee.
 
         
Securities and Exchange Commission Registration fee
  $ 1,103.74  
Federal Taxes
  $ 0.00  
States Taxes and Fees
  $ 0.00  
Trustees’ and Transfer Agents’ Fees
  $ 0.00  
Printing and Engraving expenses
  $ 150,000.00  
Legal fees and expenses
  $ 150,000.00  
Accounting fees and expenses
  $ 100,000.00  
Miscellaneous expenses
  $ 5,000.00  
Total
  $ 406,103.74  


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Item 26.  Recent Sales of Unregistered Securities.
 
Sales of TopSpin Common Stock since January 1, 2004
 
Since January 1, 2004, approximately 129 institutional and individual investors were sold 38,000,000 unregistered shares of TopSpin Common Stock. All sales, except for sales to certain interested parties and insiders described below, were exempt from registration pursuant to Section 4(2) of the Securities Act or under Regulation S as offshore sales to non-United States persons.
 
Of the 38,000,000 shares of TopSpin Common Stock sold by the Company in its August 2005 initial public offering in Israel, 7,319,000 shares were purchased by U.S. persons. Certain of these investors are interested parties in TopSpin: Pitango Venture Capital Fund III (USA) L.P., Pitango Venture Capital Fund III (USA) Non-Q L.P., Pitango Principals Fund III (USA) LP, Giza GE Venture Fund III, LP, Giza Alpinvest Venture Fund III, LP, and Giza Executive Venture Fund III, LP. Also, three individual U.S persons purchased shares of TopSpin Common Stock during the August 2005 IPO: (1) Mr. Michael Berman is the Chairman of TopSpin’s Board of Directors; (2) Robert Wilensky is a TopSpin consultant; and (3) Ron Waksman is a TopSpin consultant. In addition, Pitango Venture Capital Fund III Trusts 2000 Ltd., an interested party, purchased 169,000 shares of TopSpin Common Stock in TopSpin’s August 2005 IPO. Pitango Venture Capital Fund III Trusts 2000 Ltd. is an Israeli company that acts for the benefit of three persons, of which two: Pitango CEO Fund III (Israel) LP and Pitango CEO Fund III (USA) L.P., are domiciliaries of the state of Delaware. TopSpin considers all United States purchasers to be insiders and accredited investors and the sales to be exempt under Section 4(2) of the Securities Act.
 
Options Exercised under Grants under TopSpin’s Equity Incentive Plans
 
Since January 1, 2004, a total of 3,636,532 unregistered options under the 2003 Israeli Stock Option Plan have been exercised for shares of TopSpin Common Stock. The following list describes information regarding the exercise of these options since January 1, 2004. All sales, except for one sale to Ms. Azin Parhizgar, were exempt from registration pursuant to Section 4(2) of the Securities Act or under Regulation S as offshore sales to non-United States persons:
 
  •  2,040,927 options for shares of Common Stock were exercised by 27 employees and ex-employees of TopSpin Medical (Israel) Ltd. with gross proceeds of 80,861 NIS (approximately $19,031).
 
  •  1,621,875 options for shares of Common Stock were exercised by 3 consultants and ex-consultants of TopSpin Medical (Israel) Ltd. with gross proceeds of 69,423 NIS (approximately $16,339).
 
Ms. Azin Parhizgar, a U.S. person, exercised 200,000 options for TopSpin Common Stock. Ms. Parhizgar was a senior consultant to the Company at the time of the exercise and is considered an insider and an accredited investor and the sale was exempt under Section 4(2) of the Securities Act.
 
Exercises of Other Unregistered Options and Warrants
 
Since January 1, 2004, 1,975,385 unregistered warrants have been exercised for shares of TopSpin Common Stock. The following is a summary of these unregistered securities:
 
  •  On December 9, 2002, we granted options for 1,590,668 shares of our Common Stock to Hemisphere Capital Corp. at an exercise price of $0.1886 per share. The shares were exercisable no later than the date of the initial public offering of our Common Stock on the Tel Aviv Stock Exchange. On September 1, 2005, Hemisphere Capital Corp. exercised options for the purchase of 170,247 shares of our Common Stock by way of cashless exercise. This sale was exempt from registration in the United States pursuant to Section 4(2) of the Securities Act or under Regulation S as an offshore sale to a non-United States person.
 
  •  On September 1, 2005, three Company stockholders, Ms. Daphna Dror, the daughter of Pinhas Dror, a former director of the Company, Amatens Capital LLC, a private company wholly-owned and controlled by Mr. Yoram Ziv, and Shachar Capital LLC, a private company wholly-owned and controlled by Mr. Shaul Dukeman, exercised 716,125, 716,125 and 372,888 options respectively for


II-2

 

  shares of our Common Stock at an exercise price of $0.001 per share. Ms. Dror, Amatens Capital and Shachar Capital are all United States persons. All three warrant holders were interested persons of TopSpin at the time of the exercise of their warrants. Ms. Dror is the daughter of Pinhas Dror, who was a board member of TopSpin and 5% holder of TopSpin Common Stock at the time of the Ms. Dror’s warrant exercise. Amatens Capital LLC is owned and controlled by Yoram Ziv, who was a 5% holder of TopSpin Common Stock at the time of Amatens’ exercise. Shachar Capital LLC is controlled by Shaul Dukeman, the chairman of TopSpin’s board of directors at the time these options were granted. TopSpin considers these three U.S. persons to be insiders and accredited investors and the sale to be exempt under Section 4(2) of the Securities Act.
 
  •  On September 1, 2005, TopSpin granted 22,800,000 Series 1 Warrants exercisable for 22,800,000 shares of TopSpin Common Stock to approximately 129 institutional and individual investors for no consideration, such that for each 1,000 shares of Common Stock purchased on September 1, 2005, six hundred Series 1 Warrants were granted to the investor. The Series 1 Warrants are exercisable at an exercise price of 1.10 NIS, linked to the changes in the US Dollar/NIS exchange rate from August 25, 2005. As of the date of this prospectus, no Series 1 Warrants have been exercised for shares of TopSpin Common Stock and 22,800,000 Series 1 Warrants remain outstanding.
 
November 23, 2006 Private Placement
 
On November 23, 2006, TopSpin sold 25,000,000 Series 2 Warrants to purchase 25,000,000 shares of its Common Stock and 50,000,000 NIS (approximately $11,767,474) in Series A Convertible Bonds to 37 investors. These securities are described above in the section entitled “Description of Securities.” The Series A Convertible Bonds were sold at a price of 95% of their face value. Topspin’s net proceeds were 43,506,000 NIS (approximately $10,239,115) after the payment of certain expenses. Upon purchase of these Convertible Bonds, each investor received one Series 2 Warrant for every 2.00 NIS of face value of a Series A Convertible Bond without any additional investment. The following table delineates the amount of Series A Convertible Bonds and Series 2 Warrants sold to each investor. All sales were exempt from registration pursuant to Section 4(2) of the Securities Act or under Regulation S as offshore sales to non-United States persons:
 
                         
          Amount Paid
 		    Number of Warrants
 		 
    Face Value of
 		    for
 		    for Common Stock
 		 
    Convertible
 		    Convertible
 		    Received Without
 		 
    Bond Purchased
 		    Bonds
 		    Additional
 		 
Name of Investor
  (NIS)     (NIS)     Consideration  
 
Perfect Provident Funds
    2,100,000       1,995,000       1,050,000  
Gaon Gemel
    1,500,000       1,425,000       750,000  
Gmul-Barak Investments Managing Ltd. 
    1,500,000       1,425,000       750,000  
Provident Fund for Employees of El-Al Israel Airlines Ltd. Co-Operative Society Ltd. 
    1,500,000       1,425,000       750,000  
Kupat Tagmulim Provident Fund for Haifa
    630,000       598,500       315,000  
Kamor Systems (1988) Ltd. 
    1,050,000       997,500       525,000  
Afikim Provident Fund
    20,000       19,000       10,000  
Afikim Education Fund
    13,000       12,350       6,500  
Afikim Agach
    1,350,000       1,282,500       675,000  
Afikim Menayot
    1,000,000       950,000       500,000  
Afikim Agah Tesua Kollelet
    700,000       665,000       350,000  
Afikim Agah Activit
    1,050,000       997,050       525,000  
Migdal Trust Funds
    400,000       380,000       200,000  
Migdal 20/80 Trust Fund
    1,950,000       1,852,500       975,000  
Eliahu Insurance Company Ltd. 
    1,200,000       1,140,000       600,000  
Analyst Exchange and Trading Services Ltd. 
    2,000,000       1,900,000       1,000,000  
Analyst Provident Funds
    6,000,000       5,700,000       3,000,000  
Eilat Ashkelon Pipeline Company Ltd. 
    250,000       237,500       125,000  
Harel Gemel Ltd. 
    1,600,000       1,520,000       800,000  
Direct Investment House (Provident Funds) Ltd. 
    475,000       451,250       237,500  


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          Amount Paid
 		    Number of Warrants
 		 
    Face Value of
 		    for
 		    for Common Stock
 		 
    Convertible
 		    Convertible
 		    Received Without
 		 
    Bond Purchased
 		    Bonds
 		    Additional
 		 
Name of Investor
  (NIS)     (NIS)     Consideration  
 
Direct Insurance Ltd. 
    1,000,000       950,000       500,000  
Maoz Education Fund
    410,000       389,500       205,000  
Migdal Platinum Education Fund
    270,000       256,500       135,000  
Migdal Platinum Provident Fund
    700,000       665,000       350,000  
Migdal Platinum CPI Provident Fund
    120,000       114,000       60,000  
Harel Investment House Ltd. 
    2,100,000       1,995,000       1,050,000  
Tamir Fishman Provident and Education Fund Ltd. 
    1,500,000       1,425,000       750,000  
Midgal Alumim Platinum
    285,000       270,750       142,500  
Midgal Alumim Agat Havarot
    765,000       726,750       382,500  
I.L.D. Insurance Participating
    1,050,000       997,500       525,000  
I.L.D. Insurance Nostro
    530,000       503,500       265,000  
Israel Brokerage and Investments, I.B.I. Ltd.
    800,000       760,000       400,000  
Mercantile Discount Provident Funds
    8,420,000       7,999,000       4,210,000  
Yelin-Lapidot Provident Funds Management Ltd. 
    2,550,000       2,422,500       1,275,000  
Menora Mivtachim Gemel Ltd. 
    2,000,000       1,900,000       1,000,000  
Tagmulim Bamoshavim Ltd. 
    1,000,000       950,000       500,000  
T-Sh-Ln Management and Holdings 2000 Ltd. 
    212,000       201,400       106,000  
 
Item 27.  Exhibits.
 
The following exhibits are filed as part of this registration statement. Exhibit numbers correspond to the exhibit requirements of Regulation S-B.
 
         
Exhibit No.
 
Description
 
  3 .1   Amended and Restated Certificate of Incorporation*
  3 .2   Amended and Restated By-Laws*
  4 .1   TopSpin Medical, Inc. Convertible Bond Certificate No. 2 dated as of July 10, 2007****
  4 .2   Indenture dated as of July 10, 2007 between TopSpin Medical, Inc., Wilmington Trust Company and Ziv Haft Trusts Company Ltd.****
  4 .3   Series 2 Warrant Certificate No. 1 dated as of November 21, 2006 (translated from Hebrew)***
  4 .4   Series 2 Warrant Certificate Amendment dated as of April 30, 2007 (translated from Hebrew)***
  4 .5   Series 2 Warrant Certificate Amendment dated as of July 10, 2007 (translated from Hebrew)****
  4 .6   Trust Deed dated as of November 21, 2006 (translated from Hebrew)***
  5 .1   Opinion of Pepper Hamilton LLP##
  8 .1   Tax Opinion of Pepper Hamilton LLP#
  8 .2   Tax Opinion of Goldfarb, Levy, Eran, Meiri & Co.#
  9 .1   Voting Agreement dated as of August 22, 2005*
  10 .1   TopSpin Medical, Inc. 2001 Israeli Stock Option Plan*
  10 .2   TopSpin Medical, Inc. 2003 Israeli Stock Option Plan*
  10 .3   Form of Option Agreement*
  10 .4   Distribution Agreement with Top Medical B.V. dated as of October 3, 2006*
  10 .5   Research and Development Agreement with Technion Development Foundation Ltd. dated September 13, 2006*

II-4

 

         
Exhibit No.
 
Description
 
  10 .6(i)   Loan, Share Purchase and Share Repurchase Agreement dated as of December 9, 2002 between TopSpin Medical, Inc., TopSpin Medical (Israel) Ltd. and Erez Golan*
  10 .6(ii)   Revision to Loan, Share Purchase and Share Repurchase Agreement between TopSpin Medical, Inc., TopSpin Medical (Israel) Ltd. and Erez Golan dated as of August 2005*
  10 .7(i)   Personal Employment Agreement dated as of December 9, 2002 between TopSpin Medical (Israel) Ltd. and Erez Golan*
  10 .7(ii)   Letter Amendment dated as of August 22, 2005 to Personal Employment Agreement between TopSpin Medical (Israel) Ltd. and Erez Golan*
  10 .7(iii)   Amendment dated as of April 6, 2006 to Personal Employment Agreement between TopSpin Medical (Israel) Ltd. and Erez Golan*
  10 .7(iv)   Amendment dated as of January 7, 2007 to Personal Employment Agreement between TopSpin Medical (Israel) Ltd. and Erez Golan*
  10 .7(v)   Option Agreement dated as of January 7, 2007 between TopSpin Medical, Inc. and Erez Golan*
  10 .8(i)   Employment Agreement dated as of April 25, 2001 between TopSpin Medical (Israel) Ltd. and Eyal Kolka*
  10 .8(ii)   Amendment dated as of June 21, 2004 to Employment Agreement between TopSpin Medical (Israel) Ltd. and Eyal Kolka*
  10 .8(iii)   Amendment dated as of May 8, 2006 to Employment Agreement between TopSpin Medical (Israel) Ltd. and Eyal Kolka*
  10 .9(i)   Employment Agreement dated as of June 3, 2004 between TopSpin Medical (Israel) Ltd. and Yoav Venkert*
  10 .9(ii)   Amendment dated as of May 8, 2006 between TopSpin Medical (Israel) Ltd. and Yoav Venkert*
  10 .9(iii)   Amendment dated as of June 6, 2006 between TopSpin Medical (Israel) Ltd. and Yoav Venkert*
  10 .10   Consulting Services Letter Agreement dated as of May 1, 2003 between TopSpin Medical, Inc. and Michael Berman*
  10 .11   Form of TopSpin Medical, Inc. Indemnification Agreement*
  10 .12(i)   Indemnification for VAT payments dated as of April 6, 2006 between Ora Setter and TopSpin Medical, Inc.*
  10 .12(ii)   Indemnification for VAT payments dated as of April 6, 2006 between Gil Bianco and TopSpin Medical, Inc.*
  10 .13   Form of Employment Agreement*
  10 .14(i)   Form of Non-Disclosure Agreement*
  10 .14(ii)   Form of Mutual Non-Disclosure Agreement*
  10 .15   Form of Consulting Agreement*
  10 .16   Form of Advisory Board Agreement*
  10 .17(i)   Intercompany Loan Agreement dated as of June 21, 2001 between TopSpin Medical, Inc. and TopSpin Medical (Israel) Ltd.*
  10 .17(ii)   Letter regarding Intercompany Loan Agreement dated as of December 29, 2005 between TopSpin Medical, Inc. and TopSpin Medical (Israel) Ltd.*
  10 .17(iii)   First Supplement to Intercompany Loan Agreement dated as of April 6, 2006 between TopSpin Medical, Inc. and TopSpin Medical (Israel) Ltd.*
  10 .17(iv)   Second Supplement to Intercompany Loan Agreement dated as of February 15, 2007 between TopSpin Medical, Inc. and TopSpin Medical (Israel) Ltd.*
  10 .18   Series 1 Warrant Certificate to Purchase 22,800,000 share of TopSpin Medical, Inc. Common Stock dated as of September 1, 2005*
  10 .19   American Friends of Tmura, Inc. Warrant to Purchase 324,820 Shares of TopSpin Medical, Inc. Common Stock dated as of January 29, 2004*

II-5

 

         
Exhibit No.
 
Description
 
  10 .20   Tmura — The Israeli Public Service Venture Fund Warrant to Purchase 180 Shares of TopSpin Medical, Inc. Common Stock dated as of December 9, 2002*
  10 .21(i)   Lease Contract dated as of July 3, 2003 between Af-Sar Ltd. and TopSpin Medical (Israel) Ltd. (translated from Hebrew)*
  10 .21(ii)   Addendum (No. 1) to the Lease Contract dated as of December 17, 2006 between Af-Sar Ltd. and TopSpin Medical (Israel) Ltd. (translated from Hebrew)*
  10 .22   Trust Deed and Agreement dated as of July 4, 2004 between Yuli Yardeni, TopSpin Medical, Inc. and TopSpin Medical (Israel) Ltd. (translated from Hebrew)*
  10 .23   Underwriting Agreement dated as of August 24, 2005 between TopSpin Medical, Inc., Poalim I.B.I. Underwriting and Issuance Ltd., Altshuller Saham Management of Underwriting and Investments Ltd., Rosario Capital Ltd., Shoher Tov Ltd., P.R. Capital Markets Research Ltd., Solomon Underwriters Ltd., Jerusalem Capital Markets Underwriting and Share Issue (1994) Ltd., I.A.Z. Investments & Properties Ltd. and Vered Doroth Underwriting Company (1993) Ltd. (translated from Hebrew)*
  10 .24   Loan Agreement dated as of April 5, 2007 between TopSpin Medical, Inc., Pitango Venture Capital Fund III (USA), L.P., Pitango Principals Fund III (USA) LP, Pitango Venture Capital Fund III (USA) Non-Q L.P., Pitango Venture Capital Fund (Israeli Investors) L.P., Pitango Venture Capital Fund III Trusts 2000 L.P., Giza GE Venture Fund III, LP, Giza Venture Fund III, Limited Partnership, Giza Alpinvest Venture Fund III, LP, Giza Executive Venture Fund III, LP, Giza Gmulot Venture Fund III Limited Partnership and Israel Seed IV, L.P.*
  10 .25   Credit Line Agreement dated as of April 30, 2007 between TopSpin Medical, Inc. and Poalim IBI — Managing and Underwriting Ltd.**
  10 .26   TopSpin Medical, Inc. Series 3 Warrant Certificate No. 1 dated as of June 6, 2007****
  10 .27ˆ   Distribution Agreement by and between TopSpin Medical (Israel) Ltd. and Johnson & Johnson Medical Israel, a Division of J – C Healthcare L.T.D., dated as of July 29, 2007##
  10 .28   Form of Series A Convertible Bonds and Series 2 Warrants Subscription Agreement****
  21 .1   Subsidiaries of TopSpin Medical, Inc.****
  23 .1   Consent of Kost Forer Gabbay & Kasierer##
  23 .2   Consent of Pepper Hamilton LLP (contained in Exhibit 5.1)##
  23 .3   Consent of Goldfarb, Levy, Eran, Meiri & Co. (contained in Exhibit 8.2)#
  23 .4   Consent of Vardi, Hauser, Native & co. ##
  24 .1   Power of Attorney****
  25 .1   Statement of Eligibility and Qualifications of Wilmington Trust Company on Form T-1****
  25 .2   Statement of Eligibility and Qualifications of Ziv Haft Trusts Company Ltd. on Form T-1##
  99 .1   TopSpin Medical, Inc. Audit Committee of the Board of Directors Charter*
 
 
* Incorporated by reference to the Registrant’s Registration Statement on Form SB-2 (File No. 333-142242) filed on April 20, 2007
** Incorporated by reference to the Registrant’s Amendment No. 1 to Registration Statement on Form SB-2 (File No. 333-142242) filed on May 11, 2007
*** Incorporated by reference to the Registrant’s Amendment No. 2 to Registration Statement on Form SB-2 (File No. 333-142242) filed on May 30, 2007
**** Incorporated by reference to the Registrant’s Registration Statement on Form SB-2 (File No. 333-144472) filed on July 11, 2007
***** Incorporated by reference to the Registrant’s Amendment No. 1 to Registration Statement on Form SB-2 (File No. 333-144472) filed on August 14, 2007
# Incorporated by reference to the Registrant’s Amendment No. 2 to Registration Statement on Form SB-2 (File No. 333-144472) filed on August 29, 2007
## Incorporated by reference to the Registrant’s Amendment No. 3 to Registration Statement on Form SB-2 (File No. 333-144472) filed on September 7, 2007
ˆ An application has been submitted to the Securities and Exchange Commission for confidential treatment, pursuant to Rule 406 of the Securities Act of 1933, of portions of this exhibit. These portions have been omitted from this exhibit, and have been filed separately with the Securities and Exchange Commission.

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Item 28.  Undertakings.
 
(a) The undersigned registrant hereby undertakes:
 
(1) To file, during any period in which it offers or sells securities, a post-effective amendment to this registration statement to:
 
(i) Include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
 
(ii) Reflect in the prospectus any facts or events which, individually or together, represent a fundamental change in the information 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) (§230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
 
(iii) Include any additional or changed material information on the plan of distribution.
 
(2) For determining liability under the Securities Act, treat each post-effective amendment as a new registration statement of the securities offered, and the offering of the securities at that time to be the initial bona fide offering.
 
(3) File a post-effective amendment to remove from registration any of the securities that remain unsold at the end of the offering.
 
(4) For determining liability of the undersigned small business issuer under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned small business issuer undertakes that in a primary offering of securities of the undersigned small business issuer 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 small business issuer 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 small business issuer 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 small business issuer or used or referred to by the undersigned small business issuer;
 
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned small business issuer or its securities provided by or on behalf of the undersigned small business issuer; and
 
(iv) Any other communication that is an offer in the offering made by the undersigned small business issuer to the purchaser.
 
(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 (the “Act”) may be permitted to directors, officers and controlling persons of the small business issuer pursuant to the foregoing provisions, or otherwise, the small business issuer has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in such Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the small business issuer of expenses incurred or paid by a director, officer or controlling person of the small business issuer 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 small business issuer 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 such Securities Act and will be governed by the final adjudication of such issue.


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(c) Each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a 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 first use, 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 date of first use.


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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 SB-2 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Lod, Israel on the 10th day of September, 2007.
 
TOPSPIN MEDICAL, INC.
 
  By: 
/s/  Erez Golan
Name: Erez Golan
  Title:  Chief Executive Officer
 
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the date indicated.
 
             
SIGNATURE
 
TITLE
 
Date
 
/s/  Erez Golan

Erez Golan 		  Chief Executive Officer, President and Director
(principal executive officer) 		  September 10, 2007
         
/s/  Eyal Kolka

Eyal Kolka 		  Chief Financial Officer and Secretary (principal accounting officer)   September 10, 2007
         
*

Michael Berman 		  Chairman of the Board of Directors   September 10, 2007
         
*

Allon Reiter 		  Director   September 10, 2007
         
*

Nissim Darvish 		  Director   September 10, 2007
         
*

Neil Cohen 		  Director   September 10, 2007
         
*

Gil Bianco 		  Director   September 10, 2007
         
*

Ora Setter 		  Director   September 10, 2007
             
*By:  
/s/  
Eyal Kolka
Eyal Kolka, as Attorney-in-Fact 		       


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