State of Israel
(State or Other Jurisdiction of
Incorporation or Organization)
|
3714
(Primary Standard Industrial Classification Code Number)
Innoviz Technologies Ltd.
2 Amal Street Afek Industrial Park
Rosh HaAin, Israel
4809202
+972‑74‑700‑3692
|
Not Applicable
(I.R.S. Employer Identification No.) |
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
|
||
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, NY 10168 (800) 221‑0102
|
||
(Name, address, including zip code, and telephone number, including area code, of agent for service)
|
||
Copies to:
|
||
Ryan J. Maierson
Ryan J. Lynch
Latham & Watkins LLP
811 Main Street, Suite 3700
Houston, Texas 77002
Tel: (713) 546‑5400
|
Joshua G. Kiernan
Latham & Watkins LLP
99 Bishopsgate London EC2M 3XF United Kingdom
Tel: (+44) (20) 7710‑1000
|
Tuvia J. Geffen, Adv.
Naschitz, Brandes, Amir & Co.
5 Tuval Street
Tel-Aviv 6789717, Israel Tel: +972 3-623-5000 |
The information contained in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective.
This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
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4
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7
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8
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9
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10
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11
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12
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13
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15
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28
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28
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28
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29 |
• |
the Company’s Annual Report on Form 20‑F for the year ended December 31, 2021 filed with the SEC on March 30, 2022 (the
“Annual Report”);
|
• |
the GAAP financial information contained in the Company’s report on Form 6-K furnished to the SEC on May 11, 2022; and
|
• |
the description of the Company’s ordinary shares contained in the Company’s registration statement on Form 8‑A (File No.
001‑40310), filed with the SEC on April 5, 2021, including any amendments or reports filed for the purpose of updating such description.
|
• |
we have a limited operating history with a history of losses and we expect losses in future periods may be significant;
|
• |
our limited operating history and evolving business model makes evaluating our business and future prospects difficult and may increase the risk of your investment;
|
• |
we are creating innovative technologies by designing and developing unique components and the high price of or low yield in these components may affect our ability to sell at competitive prices, or may lead to losses;
|
• |
there are significant risks to providing our products as a direct supplier to customers;
|
• |
we expect to invest substantially in research and development for the purpose of developing and commercializing new products, and these investments could significantly reduce our profitability or increase our losses and may not generate
revenue for our company;
|
• |
we may experience significant delays in the design, production and launch of our LiDAR products for autonomous driving systems, which could harm our business, prospects, financial condition and operating results;
|
• |
we are substantially dependent on our design win with BMW and our relationship with Magna, and our business could be materially and adversely affected if the BMW L3 Program would be terminated;
|
• |
the period from a design win to implementation is long and we are subject to the risks of not achieving design wins, cancellations or postponements of contracts or unsuccessful implementation;
|
• |
we may need to raise additional funds in the future in order to execute our business plan and these funds may not be available to us when we need them; additionally, if we cannot raise additional funds when we need them, our business,
prospects, financial condition and operating results could be negatively affected;
|
• |
if market adoption of LiDAR for autonomous vehicles does not continue to develop, or develops more slowly than we expect, our business will be adversely affected;
|
• |
we target many customers that are large companies with substantial negotiating power, exacting product standards and potentially competitive internal solutions and if we are unable to sell our products to these customers, our prospects and
results of operations will be adversely affected;
|
• |
we continue to implement strategic initiatives designed to grow our business as these initiatives may prove more costly than we currently anticipate and we may not succeed in increasing our revenues by an amount sufficient to offset the
costs of these initiatives and to achieve and maintain profitability;
|
• |
the markets in which we compete are characterized by rapid technological change, which require us to continue to develop new products and product innovations, and could adversely affect market adoption of our products;
|
• |
certain of our strategic, development and supply arrangements could be terminated or may not materialize into long‑term contract partnership arrangements;
|
• |
we may experience difficulties in managing our growth and expanding our operations;
|
• |
continued pricing pressures, automotive original equipment manufacturers (“OEM”) cost reduction initiatives and the ability of automotive OEMs to re‑source or cancel vehicle or technology programs may result in lower than anticipated
margins, or losses, which may adversely affect our business; and
|
• |
the other matters described in the section entitled “Risk Factors” beginning on page 8 of this prospectus and other risk factors contained in our Annual Report and our subsequent filings with the
SEC that we incorporated by reference herein.
|
• |
an exemption from the auditor attestation requirement in the assessment of our internal controls over financial reporting required by Section 404 of the Sarbanes‑Oxley Act of 2002, or the Sarbanes‑Oxley Act; and
|
• |
an exemption from compliance with any new requirements adopted by the Public Company Accounting Oversight Board, or the PCAOB, requiring mandatory audit firm rotation or a supplement to the auditor’s report in which the auditor would
be required to provide additional information about our audit and our financial statements.
|
• |
We may take advantage of these provisions until the last day of our fiscal year following the fifth anniversary of the date of the first sale of our common equity securities pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or the Securities Act. However, if certain events occur prior to the end of such five year period, including if we become a “large accelerated filer,” our annual gross revenues exceed $1.0 billion or
we issue more than $1.0 billion of non‑convertible debt in any three‑year period, we will cease to be an emerging growth company prior to the end of such five‑year period.
|
• |
Section 107 of the JOBS Act provides that an “emerging growth company” can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting standards.
This means that an “emerging growth company” can delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have elected to delay such adoption of new or revised accounting
standards. As a result, our financial statements may not be comparable to companies that comply with the public company effective date.
|
Ordinary shares issuable by us upon exercise of the existing warrants
|
16,231,141
|
Securities that may be offered and sold from time to time by the Selling Securityholders
|
Up to 12,614,863 ordinary shares, up to 3,085,247 existing warrants and up to 3,085,247 ordinary shares issuable upon exercise of the existing warrants.
|
Terms of existing warrants
|
Each existing warrant entitles the registered holder to purchase one ordinary share at a price of $11.50 per share. Our existing warrants expire on April 5, 2026 at 5:00 p.m., New York City time.
|
Offering prices
|
The securities offered by this prospectus may be offered and sold at prevailing market prices, privately negotiated prices or such other prices as the Selling Securityholders may determine. See “Plan of Distribution.”
|
Ordinary shares issued and outstanding prior to any exercise of existing warrants
|
134,889,568 ordinary shares (as of April 18, 2022).
|
Existing warrants issued and outstanding
|
16,231,141 existing warrants (as of April 18, 2022).
|
Ordinary shares to be issued and outstanding assuming exercise of all existing warrants
|
151,120,709 ordinary shares (as of April 18, 2022).
|
Use of proceeds
|
We will receive up to an aggregate of $186.7 million from the exercise of the existing warrants, assuming the exercise in full of all the existing warrants for cash. If the existing warrants are exercised
pursuant to a cashless exercise feature, we will not receive any cash from these exercises. We expect to use the net proceeds from the exercise of the existing warrants, if any, for general corporate purposes. Our management will have
broad discretion over the use of proceeds from the exercise of the existing warrants. See “Use of Proceeds.”
|
All of the ordinary shares and existing warrants (including shares issuable upon the exercise of such existing warrants) offered by the Selling Securityholders pursuant to this prospectus will be sold by
the Selling Securityholders for their respective accounts. We will not receive any of the proceeds from these sales.
|
|
Dividend Policy
|
We have never declared or paid any cash dividend on our ordinary shares. We currently intend to retain any future earnings and do not expect to pay any dividends in the foreseeable future. Any further
determination to pay dividends on our ordinary shares would be at the discretion of our board of directors, subject to applicable laws, and would depend on our financial condition, results of operations, capital requirements, general
business conditions, and other factors that our board of directors may deem relevant.
|
Market for our ordinary shares and existing warrants
|
Our ordinary shares and existing warrants are listed on the Nasdaq Stock Market LLC (“Nasdaq”) under the trading symbols “INVZ” and “INVZW”, respectively.
|
Risk factors
|
Investing in any securities offered pursuant to this prospectus and the applicable prospectus supplement involves risks. You should carefully consider the risk factors set forth on page 8 of this
prospectus, in the Annual Report incorporated by reference into this prospectus and in our updates, if any, to those risk factors in our reports on Form 6‑K incorporated by reference into this prospectus, and all other information
contained or incorporated by reference into this prospectus, as updated by our subsequent filings under the Exchange Act and the risk factors and other information contained in the applicable prospectus supplement and any applicable
free writing prospectus before acquiring any of such securities. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
|
As of March 31, 2022
|
||||||||
(Dollars in millions)
|
Actual (unaudited)
|
As Adjusted (unaudited)
|
||||||
Indebtedness (long term loan)
|
$
|
— |
$
|
— | ||||
Warrants Liability
|
$
|
0.7
|
$
|
— | ||||
Total Shareholders’ Equity
|
$
|
273.4
|
$
|
460.8
|
||||
Total Capitalization
|
$
|
274.1
|
$
|
460.8
|
Securities Beneficially Owned prior to this offering
|
Securities
to be Sold in this offering |
Securities Beneficially Owned after this offering
|
||||||||||||||||||||||||||||||||||||||
Names and Addresses
|
Ordinary Shares
|
Percentage
|
Existing Warrants
|
Percentage
|
Ordinary Shares
|
Existing Warrants
|
Ordinary Shares
|
Percentage
|
Existing Warrants
|
Percentage
|
||||||||||||||||||||||||||||||
Omer David Keilaf(1)
|
6,555,739
|
4.8
|
%
|
20,000
|
*
|
6,555,739
|
20,000
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
Oren Rosenzweig(2)
|
3,238,514
|
2.4
|
%
|
—
|
—
|
3,238,514
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||
Perception Capital Partners, LLC(3)
|
3,140,247
|
2.3
|
%
|
3,065,247
|
18.9
|
%
|
3,140,247
|
3,065,247
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||||||
Oren Buskila(4)
|
2,765,610
|
2.0
|
%
|
—
|
—
|
2,765,610
|
—
|
—
|
—
|
—
|
—
|
* |
less than 1%
|
(1) |
Omer David Keilaf is the Chief Executive Officer and a co‑founder of the Company and is a member of the Company’s board of directors. For additional information on material relationships between Omer David Keilaf and the Company, please
see “Major Shareholders and Related Party Transactions—Related Party Transactions” in our Annual Report, which is incorporated by reference herein. Ordinary shares beneficially owned prior to this
offering consist of (a) 5,225,580 ordinary shares, (b) 20,000 ordinary shares issuable upon the exercise of existing warrants, and (c) 1,310,159 ordinary shares issuable upon vesting of RSUs or the exercise of options to purchase ordinary
shares that have vested or that vest within 60 days of April 18, 2022.
|
(2) |
Oren Rosenzweig is the former Chief Business Officer and a co‑founder of the Company and is a former member of the Company’s board of directors. For additional information on material relationships between Oren Rosenzweig and the Company,
please see “Major Shareholders and Related Party Transactions—Related Party Transactions” in our Annual Report, which is incorporated by reference herein. Ordinary shares beneficially owned prior to
this offering consist of (a) 2,039,778 ordinary shares and (b) 1,198,736 ordinary shares issuable upon vesting of RSUs or the exercise of options to purchase ordinary shares that have vested or that vest within 60 days of April 18, 2022.
|
(3) |
Consists of (a) 75,000 ordinary shares, (b) 3,065,247 ordinary shares issuable upon the exercise of existing warrants and (c) 3,065,247 existing warrants. For information on material relationships between Perception Capital Partners, LLC
and the Company, please see “Major Shareholders and Related Party Transactions—Related Party Transactions” in our Annual Report, which is incorporated by reference herein. The principal business
address for Perception Capital Partners, LLC is 315 East Lake Street, Suite 301, Wayzata, MN 55391.
|
(4) |
Oren Buskila is the Chief Research & Development officer and a co‑founder of the Company. For additional information on material relationships between Oren Buskila and the Company, please see “Major
Shareholders and Related Party Transactions—Related Party Transactions” in our Annual Report, which is incorporated by reference herein. Ordinary shares beneficially owned prior to this offering consist of (a) 1,566,874 ordinary
shares and (b) 1,198,736 ordinary shares issuable upon vesting of RSUs or the exercise of options to purchase ordinary shares that have vested or that vest within 60 days of April 18, 2022.
|
• |
the name of the participating broker‑dealer(s);
|
• |
the specific securities involved;
|
• |
the initial price at which such securities are to be sold;
|
• |
the commissions paid or discounts or concessions allowed to such broker‑dealer(s), where applicable; and
|
• |
other facts material to the transaction.
|
• |
Amortization of the cost of purchased patent, rights to use a patent, and know‑how, which are used for the development or advancement of the Industrial Enterprise, over an eight‑year period, commencing on the year in which such rights were
first exercised;
|
• |
Under limited conditions, an election to file consolidated tax returns with controlled Israeli Industrial Companies;
|
• |
The expenditures are approved by the relevant Israeli government ministry, determined by the field of research;
|
• |
The research and development must be for the promotion of the company; and
|
• |
The research and development is carried out by or on behalf of the company seeking such tax deduction.
|
• |
banks, financial institutions or insurance companies;
|
• |
real estate investment trusts or regulated investment companies;
|
• |
dealers or brokers;
|
• |
traders that elect to mark to market;
|
• |
tax exempt entities or organizations;
|
• |
“individual retirement accounts” and other tax deferred accounts;
|
• |
certain former citizens or long term residents of the United States;
|
• |
persons that are resident or ordinarily resident in or have a permanent establishment in a jurisdiction outside the United States;
|
• |
persons that acquired our ordinary shares pursuant to the exercise of any employee share option or otherwise as compensation for the performance of services;
|
• |
persons holding our ordinary shares or warrants as part of a “hedging,” “integrated” or “conversion” transaction or as a position in a “straddle” for U.S. federal income tax purposes;
|
• |
partnerships or other pass through entities and persons holding ordinary shares or warrants through partnerships or other pass through entities; or
|
• |
holders that own directly, indirectly or through attribution 10% or more of the total voting power or value of all of our outstanding shares.
|
• |
an individual who is a citizen or resident of the United States;
|
• |
a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States or any state thereof, including the District of Columbia;
|
• |
an estate the income of which is subject to U.S. federal income taxation regardless of its source; or
|
• |
a trust if such trust has validly elected to be treated as a United States person for U.S. federal income tax purposes or if (1) a court within the United States is able to exercise primary supervision over its administration and (2) one
or more United States persons have the authority to control all of the substantial decisions of such trust.
|
• |
any gain recognized by the U.S. Holder on the sale or other disposition of its ordinary shares or warrants; and
|
• |
any “excess distribution” made to the U.S. Holder (generally, any distributions to such U.S. Holder during a taxable year of the U.S. Holder that are greater than 125% of the average annual distributions received by such U.S. Holder in
respect of the ordinary shares during the three preceding taxable years of such U.S. Holder or, if shorter, such U.S. Holder’s holding period for the ordinary shares).
|
• |
the U.S. Holder’s gain or excess distribution will be allocated ratably over the U.S. Holder’s holding period for the ordinary shares and warrants;
|
• |
the amount allocated to the U.S. Holder’s taxable year in which the U.S. Holder recognized the gain or received the excess distribution, or to the period in the U.S. Holder’s holding period before the first day of our first taxable year in
which we are a PFIC, will be taxed as ordinary income;
|
• |
the amount allocated to other taxable years (or portions thereof) of the U.S. Holder and included in its holding period will be taxed at the highest tax rate in effect for that year and applicable to the U.S. Holder; and
|
• |
the interest charge generally applicable to underpayments of tax will be imposed in respect of the tax attributable to each such other taxable year of the U.S. Holder.
|
• |
the judgment was rendered by a court of competent jurisdiction, according to the laws of the state in which the judgment is given;
|
• |
the judgment is enforceable according to the laws of Israel and according to the law of the foreign state in which the relief was granted; and
|
• |
the judgment is not contrary to public policy of Israel.
|
• |
the prevailing law of the foreign state in which the judgment is rendered does not allow for the enforcement of judgments of Israeli courts (subject to exceptional cases);
|
• |
the defendant did not have a reasonable opportunity to be heard and to present his or her evidence, in the opinion of the Israeli court;
|
• |
the enforcement of the civil liabilities set forth in the judgment is likely to impair the security or sovereignty of Israel;
|
• |
the judgment was obtained by fraud;
|
• |
the judgment was rendered by a court not competent to render it according to the rules of private international law prevailing in Israel;
|
• |
the judgment conflicts with any other valid judgment in the same matter between the same parties; or
|
• |
an action between the same parties in the same matter was pending in any Israeli court or tribunal at the time at which the lawsuit was instituted in the foreign court.
|
SEC Registration Fee
|
$ 1,655.03
|
FINRA filing fee
|
*
|
Legal fees and
|
*
|
Accountants’ fees and expenses
|
*
|
Printing expenses
|
*
|
Transfer agent fees and expenses
|
*
|
Miscellaneous
|
*
|
Total
|
*
|
• |
a financial liability imposed on him or her in favor of another person pursuant to a judgment, including a settlement or arbitrator’s award approved by a court. However, if an undertaking to indemnify an office holder with respect to such
liability is provided in advance, then such an undertaking must be limited to events which, in the opinion of the board of directors, can be foreseen based on the company’s activities when the undertaking to indemnify is given, and to an
amount or according to criteria determined by the board of directors as reasonable under the circumstances, and such undertaking shall detail the abovementioned events and amount or criteria;
|
• |
reasonable litigation expenses, including attorneys’ fees, incurred by the office holder as a result of an investigation or proceeding instituted against him or her by an authority authorized to conduct such investigation or proceeding, provided that (i) no indictment was filed against such office holder as a result of such investigation or proceeding; and (ii) no financial liability, such as a criminal penalty, was imposed upon him or
her as a substitute for the criminal proceeding as a result of such investigation or proceeding or, if such financial liability was imposed, it was imposed with respect to an offense that does not require proof of criminal intent; and
|
• |
reasonable litigation expenses, including attorneys’ fees, incurred by the office holder or imposed by a court in proceedings instituted against him or her by the company, on its behalf or by a third‑party or in connection with criminal
proceedings in which the office holder was acquitted or as a result of a conviction for an offense that does not require proof of criminal intent.
|
• |
a breach of the duty of loyalty to the company, to the extent that the office holder acted in good faith and had a reasonable basis to believe that the act would not prejudice the company;
|
• |
a breach of the duty of care to the company or to a third‑party, including a breach arising out of the negligent conduct of the office holder;
|
• |
a financial liability imposed on the office holder in favor of a third‑party;
|
• |
a financial liability imposed on the office holder in favor of a third‑party harmed by a breach in an administrative proceeding; and
|
• |
reasonable litigation expenses, including attorneys’ fees, incurred by the office holder as a result of an administrative proceeding instituted against him or her.
|
• |
a breach of the duty of loyalty, except to the extent that the office holder acted in good faith and had a reasonable basis to believe that the act would not prejudice the company;
|
• |
a breach of the duty of care committed intentionally or recklessly, excluding a breach arising out of the negligent conduct of the office holder;
|
• |
an act or omission committed with intent to derive illegal personal benefit; or
|
• |
a fine or forfeit levied against the office holder.
|
Incorporation by Reference
|
||||||||||||
Exhibit No.
|
Description
|
Form
|
File No.
|
Exhibit No.
|
Filing Date
|
Filed /Furnished
|
||||||
1.1***
|
Form of Underwriting Agreement.
|
|||||||||||
F‑4
|
333‑252023
|
2.1
|
January 11, 2021
|
|||||||||
*
|
||||||||||||
**
|
||||||||||||
**
|
||||||||||||
*
|
||||||||||||
**
|
||||||||||||
**
|
||||||||||||
**
|
||||||||||||
*
|
* |
Filed herewith.
|
** |
Furnished herewith.
|
*** |
To be filed by amendment or incorporated by reference in connection with the offering of the securities.
|
† |
Schedules and Exhibits omitted pursuant to Regulation S‑K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request.
|
†† |
Indicates management contract or compensatory plan or arrangement.
|
††† |
Certain confidential portions (indicated by brackets and asterisks) have been omitted from this exhibit.
|
|
INNOVIZ TECHNOLOGIES LTD.
By: /s/ Eldar Cegla
Name: Eldar Cegla
Title: Chief Financial Officer
|
NAME
|
POSITION
|
DATE
|
/s/ Omer David Keilaf
Omer David Keilaf |
Chief Executive Officer and Director
(Principal Executive Officer)
|
May 24, 2022
|
/s/ Eldar Cegla
Eldar Cegla |
Chief Financial Officer (Principal Financial Officer
and Principal Accounting Officer)
|
May 24, 2022
|
/s/ Amichai Steimberg
Amichai Steimberg |
Director
|
May 24, 2022
|
/s/ Aharon Aharon
Aharon Aharon |
Director
|
May 24, 2022
|
/s/ Dan Falk
Dan Falk |
Director
|
May 24, 2022
|
/s/ Ronit Maor
Ronit Maor |
Director
|
May 24, 2022
|
/s/ Orit Stav
Orit Stav |
Director
|
May 24, 2022
|
/s/ James Sheridan
James Sheridan |
Director
|
May 24, 2022
|
|
By: /s/ Colleen De Vries
Name: Colleen De Vries
Title: SVP on behalf of Cogency Global Inc.
|
1. |
Definitions; Interpretation.
|
(a) |
In these Articles, the following terms (whether or not capitalized) shall bear the meanings set forth opposite them, respectively, unless the subject or context requires otherwise.
|
“Affiliate” |
shall have the meaning set forth in Rule 12b-2 promulgated under the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time, as in effect on the
date these Article come into effect.
|
“Articles” |
shall mean these Articles of Association, as amended from time to time.
|
“Beneficially Own” |
shall have the meaning set forth in Rule 13d-3 promulgated under the Exchange Act.
|
“Board of Directors” |
shall mean the Board of Directors of the Company.
|
“Chairperson” |
shall mean the Chairperson of the Board of Directors, or the Chairperson of the General Meeting, as the context implies;
|
“Company” |
shall mean INNOVIZ TECHNOLOGIES LTD.
|
“Companies Law” |
shall mean the Israeli Companies Law, 5759-1999, and the regulations promulgated thereunder. The Companies Law shall include reference to the Companies Ordinance (New Version), 5743-1983, of the State of Israel, to the extent in effect
according to the provisions thereof.
|
“Director(s)” |
shall mean the member(s) of the Board of Directors holding office at any given time, including alternate directors.
|
“External Director(s)” |
shall have the meaning provided for such term in the Companies Law.
|
“General Meeting” |
shall mean an Annual General Meeting or Special General Meeting of the Shareholders, as the case may be.
|
“NIS” |
shall mean New Israeli Shekels.
|
“Office” |
shall mean the registered office of the Company at any given time.
|
“Office Holder” or “Officer” |
shall have the meaning provided for such term in the Companies Law.
|
“Perception” |
shall mean Perception Capital Partners, LLC, a Delaware corporation.
|
“Perception Director” |
shall mean the Director designated by Perception, including his or her alternate director in accordance with Articles 33 through 37 and Article 39.
|
“Perception Holders” |
shall mean Perception together with the Perception Permitted Transferees.
|
“Perception Permitted
Transferee” |
shall mean an Affiliate of Perception
|
“RTP Law” |
shall mean the Israeli Economic Competition Law, 5758-1988.
|
“Securities Law” |
shall mean the Israeli Securities Law, 5728-1968.
|
“Shareholder(s)” |
shall mean the shareholder(s) of the Company, at any given time.
|
“Term” |
shall mean such period commencing on the date hereof and ending on the date on which Perception and the Perception Permitted Transferees Beneficially Own, in the aggregate, a number of Shares that is less than fifty percent (50%) of the
total number of Shares Perception Beneficially Owns on the date hereof, as adjusted for any stock splits, stock dividends, reorganizations, recapitalizations and the like.
|
“in writing” or “writing” |
shall mean written, printed, photocopied, photographed or typed, including if appearing in an email, facsimile or if produced by any visible substitute for a writing, or partly one and partly another. The term “signed” or “signature” shall
be construed in a corresponding manner.
|
(b) |
Unless otherwise defined in these Articles or required by the context, terms used herein shall have the meaning provided therefor under the Companies Law.
|
(c) |
Unless the context shall otherwise require: words in the singular shall also include the plural, and vice versa; any pronoun shall include the corresponding masculine, feminine and neuter forms; the words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without limitation”; the words “herein”, “hereof” and “hereunder” and words of similar import refer to these Articles in their entirety and not to any part hereof; all references
herein to Articles, Sections or clauses shall be deemed references to Articles, Sections or clauses of these Articles; any references to any agreement or other instrument or law, statute or regulation are to it as amended, supplemented or
restated, from time to time (and, in the case of any law, to any successor provisions or re-enactment or modification thereof being in force at the time); any reference to “law” shall include any supranational, national, federal, state,
local, or foreign statute or law and all rules and regulations promulgated thereunder (including, any rules, regulations or forms prescribed by any governmental authority or securities exchange commission or authority, if and to the extent
applicable); any reference to a “day” or a number of “days” (without any explicit reference otherwise, such as to business days) shall be interpreted as a reference to a calendar day or number of calendar days; any reference to a month or year shall be interpreted in accordance with the Gregorian calendar; any reference to a “company”, “corporate body” or “entity” shall include a partnership,
corporation, limited liability company, association, trust, unincorporated organization, or a government or agency or political subdivision thereof, and any reference to a “person” shall include any of the foregoing types of entities or a
natural person.
|
(d) |
The captions in these Articles are for convenience only and shall not be deemed a part hereof or affect the construction or interpretation of any provision hereof.
|
2. |
The Company is a limited liability company and each Shareholder’s obligations to the Company shall therefore be limited to the payment of the nominal value of the shares held by such shareholder, subject to the provisions of the Companies
Law.
|
3. |
Public Company; Objectives.
|
4. |
Donations.
|
5. |
Authorized Share Capital.
|
(a) |
The share capital of the Company shall consist of 500,000,000 Ordinary Shares, of no par value (the “Shares”).
|
(b) |
The Shares shall rank pari passu in all respects. The Shares may be redeemable to the extent set forth in Article 13.
|
6. |
Increase of Authorized Share Capital.
|
(a) |
The Company may, from time to time, by a Shareholders' resolution, whether or not all of the shares then authorized have been issued, increase its authorized share capital by increasing the number of shares it is authorized to issue. Any
such increase shall be in such amount and shall be divided into shares of such nominal amounts, and such shares shall confer such rights and preferences, and shall be subject to such restrictions, as such resolution shall provide.
|
(b) |
Except to the extent otherwise provided in such resolution, any new shares included in the authorized share capital increase as aforesaid shall be subject to all of the provisions of these Articles that are applicable to shares of such
class that are included in the existing share capital.
|
7. |
Special or Class Rights; Modification of Rights.
|
(a) |
The Company may, from time to time, by a resolution of the General Meeting, provide for shares with such preferred or deferred rights or other special rights and/or such restrictions, whether in regard to dividends, voting, repayment of
share capital or otherwise, as may be stipulated in such resolution.
|
(b) |
If at any time the share capital of the Company is divided into different classes of shares, the rights attached to any class, unless otherwise provided by these Articles, may be modified or cancelled by the Company by a resolution of the
General Meeting of the holders of all shares as one class, without any required separate resolution of any class of shares.
|
(c) |
The provisions of these Articles relating to General Meetings shall apply, mutatis mutandis, to any separate General Meeting of the holders of the shares of a particular class, it being clarified that the requisite quorum at any such
separate General Meeting shall be two or more shareholders present in person or by proxy and holding not less than twenty-five percent (25%) of the issued shares of such class.
|
(d) |
Unless otherwise provided by these Articles, an increase in the authorized share capital, the creation of a new class of shares, an increase in the authorized share capital of a class of shares, or the issuance of additional shares thereof
out of the authorized and unissued share capital, shall not be deemed, for purposes of this Article 7, to modify or derogate or cancel the rights attached to previously issued shares of such class or of any other class.
|
8. |
Consolidation, Division, Cancellation and Reduction of Share Capital.
|
(a) |
The Company may, from time to time, by or pursuant to an authorization of a Shareholders’ resolution, and subject to applicable law:
|
(b) |
With respect to any consolidation of issued shares and with respect to any other action which may result in fractional shares, the Board of Directors may settle any difficulty which may arise with regard thereto, as it deems fit, and, in
connection with any such consolidation or other action which could result in fractional shares, may, without limiting its aforesaid power:
|
9. |
Issuance of Share Certificates, Replacement of Lost Certificates.
|
(a) |
To the extent that the Board of Directors determines that all shares shall be certificated or, if the Board of Directors does not so determine, to the extent that any shareholder requests a share certificate or the Company’s transfer agent
so requires, share certificates shall be issued under the corporate seal of the Company or its written, typed or stamped name and shall bear the signature of one Director, the Company’s Chief Executive Officer, or any person or persons
authorized therefor by the Board of Directors. Signatures may be affixed in any mechanical or electronic form, as the Board of Directors may prescribe.
|
(b) |
Subject to the provisions of Article 9(a), each Shareholder shall be entitled to one numbered certificate for all of the shares of any class registered in his name. Each certificate may specify the amount paid up thereon. The Company (as
determined by an officer of the Company to be designated by the Chief Executive Officer) shall not refuse a request by a Shareholder to obtain several certificates in place of one certificate, unless such request is, in the opinion of such
officer, unreasonable. Where a Shareholder has sold or transferred some of such Shareholder’s shares, such Shareholder shall be entitled to receive a certificate in respect of such Shareholder’s remaining shares, provided that the previous
certificate is delivered to the Company before the issuance of a new certificate.
|
(c) |
A share certificate registered in the names of two or more persons shall be delivered to the person first named in the Register of Shareholders in respect of such co-ownership.
|
(d) |
A share certificate which has been defaced, lost or destroyed, may be replaced, and the Company shall issue a new certificate to replace such defaced, lost or destroyed certificate upon payment of such fee, and upon the furnishing of such
evidence of ownership and such indemnity, as the Board of Directors in its discretion deems fit.
|
10. |
Registered Holder.
|
11. |
Issuance and Repurchase of Shares.
|
(a) |
The unissued shares from time to time shall be under the control of the Board of Directors (and, to the full extent permitted by law, any Committee thereof), which shall have the power to issue or otherwise dispose of shares and of
securities convertible or exercisable into or other rights to acquire from the Company to such persons, on such terms and conditions, and either at par or at a premium, or subject to the provisions of the Companies Law, at a discount and/or
with payment of commission, and at such times, as the Board of Directors (or the Committee, as the case may be) deems fit, and the power to give to any person the option to acquire from the Company any shares or securities convertible or
exercisable into or other rights to acquire from the Company, either at par or at a premium, or, subject as aforesaid, at a discount and/or with payment of commission, during such time and for such consideration as the Board of Directors (or
the Committee, as the case may be) deems fit.
|
(b) |
The Company may at any time and from time to time, subject to the Companies Law, repurchase or finance the purchase of any shares or other securities issued by the Company, in such manner and under such terms as the Board of Directors
shall determine, whether from any one or more shareholders. Such purchase shall not be deemed as payment of dividends and as such, no shareholder will have the right to require the Company to purchase his shares or offer to purchase shares
from him or any other shareholders.
|
12. |
Payment in Installment.
|
13. |
Redeemable Shares.
|
14. |
Registration of Transfer.
|
15. |
Suspension of Registration.
|
16. |
Decedents’ Shares.
|
(a) |
In case of a share registered in the names of two or more holders, the Company may recognize the survivor(s) as the sole owner(s) thereof unless and until the provisions of Article 16(b) have been effectively invoked.
|
(b) |
Any person becoming entitled to a share in consequence of the death of any person, upon producing evidence of the grant of probate or letters of administration or declaration of succession (or such other evidence as the Board of Directors,
or an officer of the Company to be designated by the Chief Executive Officer, may reasonably deem sufficient), shall be registered as a shareholder in respect of such share, or may, subject to the provisions as to transfer contained herein,
transfer such share.
|
17. |
Receivers and Liquidators.
|
(a) |
The Company may recognize any receiver, liquidator or similar official appointed to wind-up, dissolve or otherwise liquidate a corporate shareholder, and a trustee, manager, receiver, liquidator or similar official appointed in bankruptcy
or in connection with the reorganization of, or similar proceeding with respect to a shareholder or its properties, as being entitled to the shares registered in the name of such shareholder.
|
(b) |
Such receiver, liquidator or similar official appointed to wind-up, dissolve or otherwise liquidate a corporate shareholder and such trustee, manager, receiver, liquidator or similar official appointed in bankruptcy or in connection with
the reorganization of, or similar proceedings with respect to a shareholder or its properties, upon producing such evidence as the Board of Directors (or an officer of the Company to be designated by the Chief Executive Officer) may deem
sufficient as to his authority to act in such capacity or under this Article, shall with the consent of the Board of Directors (which the Board of Directors may grant or refuse in its absolute discretion), be registered as a shareholder in
respect of such shares, or may, subject to the regulations as to transfer herein contained, transfer such shares.
|
18. |
General Meetings.
|
(a) |
An annual General Meeting (“Annual General Meeting”) shall be held at least once in every calendar year, not later than 15 months after the last preceding annual General Meeting, at such time and at
such place, either within or out of the State of Israel, as may be determined by the Board of Directors.
|
(b) |
All General Meetings other than Annual General Meetings shall be called “Special General Meetings”.
|
19. |
Record Date for General Meeting.
|
20. |
Shareholder Proposal Request.
|
(a) |
Any Shareholder or Shareholders of the Company holding at least one percent (1%) of the voting rights of the Company (the “Proposing Shareholder(s)”) may request, subject to the Companies Law, that
the Board of Directors include a matter on the agenda of a General Meeting to be held in the future, provided that the Board of Directors determines that the matter is appropriate to be considered at a General Meeting (a “Proposal Request”). In order for the Board of Directors to consider a Proposal Request and whether to include the matter stated therein in the agenda of a General Meeting, notice of the Proposal Request
must be timely delivered in accordance with applicable law, and the Proposal Request must comply with the requirements of these Articles (including this Article 20) and any applicable law and stock exchange rules and regulations. The Proposal
Request must be in writing, signed by all of the Proposing Shareholder(s) making such request, delivered, either in person or by certified mail, postage prepaid, and received by the Secretary (or, in the absence thereof by the Chief Executive
Officer) of the Company. The announcement of an adjournment or postponement of a General Meeting shall not commence a new time period (or extend any time period) for the delivery of a Proposal Request as described above. In addition to any
information required to be included in accordance with applicable law, a Proposal Request must include the following: (i) the name, address, telephone number, fax number and email address of the Proposing Shareholder (or each Proposing
Shareholder, as the case may be) and, if an entity, the name(s) of the person(s) that controls or manages such entity; (ii) the number of Shares held by the Proposing Shareholder(s), directly or indirectly (and, if any of such Shares are held
indirectly, an explanation of how they are held and by whom), which shall be in such number no less than as is required to qualify as a Proposing Shareholder, accompanied by evidence satisfactory to the Company of the record holding of such
Shares by the Proposing Shareholder(s) as of the date of the Proposal Request, and a representation that the Proposing Shareholder(s) intends to appear in person or by proxy at the meeting; (iii) the matter requested to be included on the
agenda of a General Meeting, all information related to such matter, the reason that such matter is proposed to be brought before the General Meeting, the complete text of the resolution that the Proposing Shareholder proposes to be voted
upon at the General Meeting and, if the Proposing Shareholder wishes to have a position statement in support of the Proposal Request, a copy of such position statement that complies with the requirement of any applicable law (if any), (iv) a
description of all arrangements or understandings between the Proposing Shareholders and any other Person(s) (naming such Person or Persons) in connection with the matter that is requested to be included on the agenda and a declaration signed
by all Proposing Shareholder(s) of whether any of them has a personal interest in the matter and, if so, a description in reasonable detail of such personal interest; (v) a description of all Derivative Transactions (as defined below) by each
Proposing Shareholder(s) during the previous twelve (12) month period, including the date of the transactions and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions; and
(vi) a declaration that all of the information that is required under the Companies Law and any other applicable law and stock exchange rules and regulations to be provided to the Company in connection with such matter, if any, has been
provided to the Company. The Board of Directors, may, in its discretion, to the extent it deems necessary, request that the Proposing Shareholder(s) provide additional information necessary so as to include a matter in the agenda of a
General Meeting, as the Board of Directors may reasonably require.
|
(b) |
The information required pursuant to this Article shall be updated as of (i) the record date of the General Meeting, (ii) five business days before the General Meeting, and (iii) as of the General Meeting, and any adjournment or
postponement thereof.
|
(c) |
The provisions of Articles 20(a) and 20(b) shall apply, mutatis mutandis, on any matter to be included on the agenda of a Special General Meeting which is convened pursuant to a request of a
Shareholder duly delivered to the Company in accordance with the Companies Law.
|
21. |
Notice of General Meetings; Omission to Give Notice.
|
(a) |
The Company is not required to give notice of a General Meeting, subject to any mandatory provision of the Companies Law. Notwithstanding anything herein to the contrary, to the extent permitted under the Companies Law, with the consent
of all Shareholders entitled to vote thereon, a resolution may be proposed and passed at such meeting although a lesser notice period than required under the Companies Law has been given.
|
(b) |
The accidental omission to give notice of a General Meeting to any Shareholder, or the non-receipt of notice sent to such Shareholder, shall not invalidate the proceedings at such meeting or any resolution adopted thereat.
|
(c) |
No Shareholder present, in person or by proxy, at any time during a General Meeting shall be entitled to seek the cancellation or invalidation of any proceedings or resolutions adopted at such General Meeting on account of any defect in
the notice of such meeting relating to the time or the place thereof, or any item acted upon at such meeting.
|
(d) |
The Company may add additional places for Shareholders to review the full text of the proposed resolutions to be adopted at a General Meeting, including an internet site.
|
22. |
Quorum.
|
(a) |
No business shall be transacted at a General Meeting, or at any adjournment thereof, unless the quorum required under these Articles for such General Meeting or such adjourned meeting, as the case may be, is present when the meeting
proceeds to business.
|
(b) |
In the absence of contrary provisions in these Articles, two or more shareholders, present in person or by proxy and holding shares conferring in the aggregate at least twenty-five percent (25%) of the voting power of the Company, shall
constitute a quorum of General Meetings. For the purpose of calculating the quorum present at a certain General Meeting, a proxy holder may be counted as two (2) or more Shareholders in accordance with the actual number of Shareholders
represented by the proxy holder.
|
(c) |
If within half an hour from the time appointed for the meeting a quorum is not present, then without any further notice, the meeting shall be adjourned either (i) to the same day in the next week, at the same time and place, (ii) to such
day and at such time and place as indicated in the notice of such meeting, or (iii) to such day and at such time and place as the Chairperson of the General Meeting shall determine (which may be earlier or later than the date pursuant to
clause (i) above). No business shall be transacted at any adjourned meeting except business which might lawfully have been transacted at the meeting as originally called. At such adjourned meeting, if the original meeting was convened upon
requisition under Section 63 of the Companies Law, one or more shareholders, present in person or by proxy, and holding the number of shares required for making such requisition, shall constitute a quorum, but in any other case any
shareholder (not in default as aforesaid) present in person or by proxy, shall constitute a quorum.
|
23. |
Chairperson of General Meeting.
|
24. |
Adoption of Resolutions at General Meetings.
|
(a) |
Except as required by the Companies Law or these Articles, including, without limitation, Article 34 below, a resolution of the Shareholders shall be adopted if approved by the holders of a simple majority of the voting power represented
at the General Meeting in person or by proxy and voting thereon, as one class, and disregarding abstentions from the count of the voting power present and voting. Without limiting the generality of the foregoing, a resolution with respect to
a matter or action for which the Companies Law prescribes a higher majority or pursuant to which a provision requiring a higher majority would have been deemed to have been incorporated into these Articles, but for which the Companies Law
allows these Articles to provide otherwise (including Sections 327 and 24 of the Companies Law), shall be adopted by a simple majority of the voting power represented at the General Meeting in person or by proxy and voting thereon, as one
class, and disregarding abstentions from the count of the voting power present and voting.
|
(b) |
Every question submitted to a General Meeting shall be decided by a show of hands, but the Chairperson of the General Meeting may determine that a resolution shall be decided by a written ballot. A written ballot may be implemented before
the proposed resolution is voted upon or immediately after the declaration by the Chairperson of the results of the vote by a show of hands. If a vote by written ballot is taken after such declaration, the results of the vote by a show of
hands shall be of no effect, and the proposed resolution shall be decided by such written ballot.
|
(c) |
A declaration by the Chairperson of the General Meeting that a resolution has been carried unanimously, or carried by a particular majority, or rejected, and an entry to that effect in the minute book of the Company, shall be prima facie
evidence of the fact without proof of the number or proportion of the votes recorded in favor of or against such resolution.
|
25. |
Power to Adjourn.
|
26. |
Voting Power.
|
27. |
Voting Rights.
|
(a) |
A company or other corporate body being a Shareholder of the Company may duly authorize any person to be its representative at any meeting of the Company or to execute or deliver a proxy on its behalf. Any person so authorized shall be
entitled to exercise on behalf of such Shareholder all the power, which the Shareholder could have exercised if it were an individual. Upon the request of the Chairperson of the General Meeting, written evidence of such authorization (in
form acceptable to the Chairperson) shall be delivered to him.
|
(b) |
Any Shareholder entitled to vote may vote either in person or by proxy (who need not be Shareholder of the Company), or, if the Shareholder is a company or other corporate body, by representative authorized pursuant to Article (a) above.
|
(c) |
If two or more persons are registered as joint holders of any share, the vote of the senior who tenders a vote, in person or by proxy, shall be accepted to the exclusion of the vote(s) of the other joint holder(s). For the purpose of this
Article 27(c), seniority shall be determined by the order of registration of the joint holders in the Register of Shareholder.
|
28. |
Instrument of Appointment.
|
(a) |
An instrument appointing a proxy shall be in writing and shall be substantially in the following form:
|
“I
|
of
|
||
(Name of Shareholder)
|
(Address of Shareholder)
|
||
Being a shareholder of Innoviz Technologies Ltd. hereby appoints
|
|||
of
|
|||
(Name of Proxy)
|
(Address of Proxy)
|
||
as my proxy to vote for me and on my behalf at the General Meeting of the Company to be held on the ___ day of _______, _______ and at any adjournment(s) thereof.
|
|||
Signed this ____ day of ___________, ______.
|
|||
(Signature of Appointor)”
|
(b) |
Subject to the Companies Law, the original instrument appointing a proxy or a copy thereof certified by an attorney (and the power of attorney or other authority, if any, under which such instrument has been signed) shall be delivered to
the Company (at its Office, at its principal place of business, or at the offices of its registrar or transfer agent, or at such place as notice of the meeting may specify) not less than forty eight (48) hours (or such shorter period as the
notice shall specify) before the time fixed for such meeting. Notwithstanding the above, the Chairperson shall have the right to waive the time requirement provided above with respect to all instruments of proxies and to accept any and all
instruments of proxy until the beginning of a General Meeting. A document appointing a proxy shall be valid for every adjourned meeting of the General Meeting to which the document relates.
|
29. |
Effect of Death of Appointor of Transfer of Share and or Revocation of Appointment.
|
(a) |
A vote cast in accordance with an instrument appointing a proxy shall be valid notwithstanding the prior death or bankruptcy of the appointing shareholder (or of his attorney-in-fact, if any, who signed such instrument), or the transfer of
the share in respect of which the vote is cast, unless written notice of such matters shall have been received by the Company or by the Chairperson of such meeting prior to such vote being cast.
|
(b) |
Subject to the Companies Law, an instrument appointing a proxy shall be deemed revoked (i) upon receipt by the Company or the Chairperson, subsequent to receipt by the Company of such instrument, of written notice signed by the person
signing such instrument or by the Shareholder appointing such proxy canceling the appointment thereunder (or the authority pursuant to which such instrument was signed) or of an instrument appointing a different proxy (and such other
documents, if any, required under Article 28(b) for such new appointment), provided such notice of cancellation or instrument appointing a different proxy were so received at the place and within the time for delivery of the instrument
revoked thereby as referred to in Article 28(b) hereof, or (ii) if the appointing shareholder is present in person at the meeting for which such instrument of proxy was delivered, upon receipt by the Chairperson of such meeting of written
notice from such shareholder of the revocation of such appointment, or if and when such shareholder votes at such meeting. A vote cast in accordance with an instrument appointing a proxy shall be valid notwithstanding the revocation or
purported cancellation of the appointment, or the presence in person or vote of the appointing shareholder at a meeting for which it was rendered, unless such instrument of appointment was deemed revoked in accordance with the foregoing
provisions of this Article 29(b) at or prior to the time such vote was cast.
|
30. |
Powers of Board of Directors.
|
(a) |
The Board of Directors may exercise all such powers and do all such acts and things as the Board of Directors is authorized by law or as the Company is authorized to exercise and do and are not hereby or by law required to be exercised or
done by the General Meeting. The authority conferred on the Board of Directors by this Article 30 shall be subject to the provisions of the Companies Law, these Articles and any regulation or resolution consistent with these Articles adopted
from time to time at a General Meeting, provided, however, that no such regulation or resolution shall invalidate any prior act done by or pursuant to a decision of the Board of Directors which would have been valid if such regulation or
resolution had not been adopted.
|
(b) |
Without limiting the generality of the foregoing, the Board of Directors may, from time to time, set aside any amount(s) out of the profits of the Company as a reserve or reserves for any purpose(s) which the Board of Directors, in its
absolute discretion, shall deem fit, including without limitation, capitalization and distribution of bonus shares, and may invest any sum so set aside in any manner and from time to time deal with and vary such investments and dispose of all
or any part thereof, and employ any such reserve or any part thereof in the business of the Company without being bound to keep the same separate from other assets of the Company, and may subdivide or re-designate any reserve or cancel the
same or apply the funds therein for another purpose, all as the Board of Directors may from time to time think fit.
|
31. |
Exercise of Powers of Board of Directors.
|
(a) |
A meeting of the Board of Directors at which a quorum is present shall be competent to exercise all the authorities, powers and discretion vested in or exercisable by the Board of Directors.
|
(b) |
A resolution proposed at any meeting of the Board of Directors shall be deemed adopted if approved by a majority of the Directors present, entitled to vote and voting thereon when such resolution is put to a vote.
|
(c) |
The Board of Directors may adopt resolutions, without convening a meeting of the Board of Directors, in writing or in any other manner permitted by the Companies Law.
|
(d) |
The Board of Directors may hold meetings by use of any means of communication on the condition that all participating directors can hear each other at the same time.
|
32. |
Delegation of Powers.
|
(a) |
The Board of Directors may, subject to the provisions of the Companies Law, delegate any or all of its powers to committees (in these Articles referred to as a “Committee of the Board of Directors”,
or “Committee”), each consisting of one or more persons, and it may from time to time revoke such delegation or alter the composition of any such Committee. No regulation imposed by the Board of
Directors on any Committee and no resolution of the Board of Directors shall invalidate any prior act done or pursuant to a resolution by the Committee which would have been valid if such regulation or resolution of the Board of Directors had
not been adopted. The meetings and proceedings of any such Committee of the Board of Directors shall, mutatis mutandis, be governed by the provisions herein contained for regulating the meetings of
the Board of Directors, to the extent not superseded by any regulations adopted by the Board of Directors. Unless otherwise expressly prohibited by the Board of Directors, in delegating powers to a Committee of the Board of Directors, such
Committee shall be empowered to further delegate such powers.
|
(b) |
Without derogating from the provisions of Article 44, the Board of Directors may from time to time appoint a Secretary to the Company, as well as officers, agents, employees and independent contractors, as the Board of Directors deems fit,
and may terminate the service of any such person. The Board of Directors may, subject to the provisions of the Companies Law, determine the powers and duties, as well as the salaries and compensation, of all such persons.
|
(c) |
The Board of Directors may from time to time, by power of attorney or otherwise, appoint any person, company, firm or body of persons to be the attorney or attorneys of the Company at law or in fact for such purposes(s) and with such
powers, authorities and discretions, and for such period and subject to such conditions, as it deems fit, and any such power of attorney or other appointment may contain such provisions for the protection and convenience of persons dealing
with any such attorney as the Board of Directors deems fit, and may also authorize any such attorney to delegate all or any of the powers, authorities and discretions vested in him.
|
33. |
Number of Directors.
|
(a) |
The Board of Directors shall consist of such number of Directors (not less than three (3) nor more than nine (9), including External Directors, if any were elected) as may be fixed from time to time by the Board of Directors.
|
(b) |
Notwithstanding the foregoing, during the Term, one member of the Board shall be appointed, removed and replaced by the Perception Holders, provided that any appointment hereunder is subject to the board composition rules under applicable
law and the rules of any stock exchange on which the Shares are then listed and shall be reasonably acceptable to the Board of Directors.
|
(c) |
Notwithstanding anything to the contrary herein, this Article 33 may only be amended or replaced by a resolution adopted at a General Meeting by a majority of at least sixty percent (60%) of the total voting power of the Company’s
shareholders, provided that during the Term any amendment to Article 33(b) shall also require the consent of Perception.
|
34. |
Election and Removal of Directors.
|
(a) |
The Directors, excluding (i) the External Directors, if any were elected, and (ii) during the Term, the Perception Director, shall be classified, with respect to the term for which they each severally hold office, into three classes, as
nearly equal in number as practicable, hereby designated as Class I, Class II and Class III. The Board of Directors may assign members of the Board of Directors already in office to such classes at the time such classification becomes
effective.
|
(i) |
The term of office of the initial Class I directors shall expire at the first Annual General Meeting to be held following the initial registration of the Company’s Ordinary Shares pursuant to the Securities Exchange Act of 1934 and when
their successors are elected and qualified,
|
(ii) |
The term of office of the initial Class II directors shall expire at the first Annual General Meeting following the Annual General Meeting referred to in clause (i) above and when their successors are elected and qualified, and
|
(iii) |
The term of office of the initial Class III directors shall expire at the first Annual General Meeting following the Annual General Meeting referred to in clause (ii) above and when their successors are elected and qualified,
|
(b) |
At each Annual General Meeting, commencing with the Annual General Meeting to be held in 2021, each of the successors elected to replace the Directors of a Class whose term shall have expired at such Annual General Meeting shall be elected
to hold office until the third Annual General Meeting next succeeding his or her election and until his or her respective successor shall have been elected and qualified. Notwithstanding anything to the contrary, each Director shall serve
until his or her successor is elected and qualified or until such earlier time as such Director's office is vacated.
|
(c) |
If the number of Directors (excluding External Directors, if any were elected) that consists the Board of Directors is hereafter changed, any newly created directorships or decrease in directorships shall be so apportioned by the Board of
Directors among the classes as to make all classes as nearly equal in number as is practicable, provided that no decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director.
|
(d) |
Prior to every General Meeting of the Company at which Directors are to be elected, and subject to clauses (a) and (h) of this Article, the Board of Directors (or a Committee thereof) shall select, by a resolution adopted by a majority of
the Board of Directors (or such Committee), a number of Persons to be proposed to the Shareholders for election as Directors at such General Meeting (the “Nominees”).
|
(e) |
Any Proposing Shareholder requesting to include on the agenda of a General Meeting a nomination of a Person to be proposed to the Shareholders for election as Director (such person, an “Alternate Nominee”),
may so request provided that it complies with this Article 34(e) and Article 20 and applicable law. Unless otherwise determined by the Board of Directors, a Proposal Request relating to Alternate Nominee is deemed to be a matter that is
appropriate to be considered only in an Annual General Meeting. In addition to any information required to be included in accordance with applicable law, such a Proposal Request shall include information required pursuant to Article 20, and
shall also set forth: (i) the name, address, telephone number, fax number and email address of the Alternate Nominee and all citizenships and residencies of the Alternate Nominee; (ii) a description of all arrangements, relations or
understandings between the Proposing Shareholder(s) or any of its affiliates and each Alternate Nominee; (iii) a declaration signed by the Alternate Nominee that he consents to be named in the Company’s notices and proxy materials relating to
the General Meeting, if provided or published, and, if elected, to serve on the Board of Directors and to be named in the Company’s disclosures and filings, (iv) a declaration signed by each Alternate Nominee as required under the Companies
Law and any other applicable law and stock exchange rules and regulations for the appointment of such an Alternate Nominee and an undertaking that all of the information that is required under law and stock exchange rules and regulations to
be provided to the Company in connection with such an appointment has been provided (including, information in respect of the Alternate Nominee as would be provided in response to the applicable disclosure requirements under Form 20-F or any
other applicable form prescribed by the U.S. Securities and Exchange Commission (the “SEC”); (v) a declaration made by the Alternate Nominee of whether he meets the criteria for an independent director
and/or External Director of the Company under the Companies Law and/or under any applicable law, regulation or stock exchange rules, and if not, then an explanation of why not; and (vi) any other information required at the time of submission
of the Proposal Request by applicable law, regulations or stock exchange rules. In addition, the Proposing Shareholder shall promptly provide any other information reasonably requested by the Company. The Board of Directors may refuse to
acknowledge the nomination of any person not made in compliance with the foregoing. The Company shall be entitled to publish any information provided by a Proposing Shareholder pursuant to this Article 34(e) and Article 20, and the Proposing
Shareholder shall be responsible for the accuracy and completeness thereof.
|
(f) |
The Nominees or Alternate Nominees shall be elected by a resolution adopted at the General Meeting at which they are subject to election.
|
(g) |
Notwithstanding anything to the contrary herein, this Article 34 and Article 37(e) may only be amended, replaced or suspended by a resolution adopted at a General Meeting by a majority of at least sixty percent (60%) of the total voting
power of the Company’s shareholders.
|
(h) |
Notwithstanding anything to the contrary in these Articles, the election, qualification, removal or dismissal of External Directors, if so elected, shall be only in accordance with the applicable provisions set forth in the Companies Law.
|
35. |
Commencement of Directorship.
|
36. |
Continuing Directors in the Event of Vacancies.
|
37. |
Vacation of Office.
|
(a) |
ipso facto, upon his death;
|
(b) |
if he is prevented by applicable law from serving as a Director;
|
(c) |
if the Board determines that due to his mental or physical state he is unable to serve as a director;
|
(d) |
if his directorship expires pursuant to these Articles and/or applicable law;
|
(e) |
by a resolution adopted at a General Meeting by a majority of at least sixty percent (60%) of the total voting power of the Company’s shareholders. Such removal shall become effective on the date fixed in such resolution;
|
(f) |
by his written resignation, such resignation becoming effective on the date fixed therein, or upon the delivery thereof to the Company, whichever is later;
|
(g) |
with respect to an External Director, if so elected, and notwithstanding anything to the contrary herein, only pursuant to applicable law; or
|
(h) |
with respect to a Perception Director, notwithstanding anything to the contrary herein, at the earlier of (i) any time following the Term, by a resolution adopted by the Board (excluding the Perception Director then on the Board of
Directors), or (ii) at the first Annual General Meeting following the Term.
|
38. |
Conflict of Interests; Approval of Related Party Transactions.
|
(a) |
Subject to the provisions of the Companies Law and these Articles, no Director shall be disqualified by virtue of his office from holding any office or place of profit in the Company or in any company in which the Company shall be a
shareholder or otherwise interested, or from contracting with the Company as vendor, purchaser or otherwise, nor shall any such contract, or any contract or arrangement entered into by or on behalf of the Company in which any Director shall
be in any way interested, be avoided, nor, other than as required under the Companies Law, shall any Director be liable to account to the Company for any profit arising from any such office or place of profit or realized by any such contract
or arrangement by reason only of such Director's holding that office or of the fiduciary relations thereby established, but the nature of his interest, as well as any material fact or document, must be disclosed by him at the meeting of the
Board of Directors at which the contract or arrangement is first considered, if his interest then exists, or, in any other case, at no later than the first meeting of the Board of Directors after the acquisition of his interest.
|
(b) |
Subject to the Companies Law and these Articles, a transaction between the Company and an Office Holder, and a transaction between the Company and another entity in which an Office Holder of the Company has a personal interest, which is
not an Extraordinary Transaction (as defined by the Companies Law), shall be approved by the Board of Directors or a committee of the Board. Such authorization, as well as the actual approval, may be for a particular transaction or more
generally for specific type of transactions.
|
39. |
Alternate Directors.
|
(a) |
Subject to the provisions of the Companies Law, a Director may, by written notice to the Company, appoint, remove or replace any person as an alternate for himself; provided that the appointment of such person shall have effect only upon
and subject to its being approved by the Board of Directors (in these Articles, an "Alternate Director"). Unless the appointing Director, by the instrument appointing an Alternate Director or by written
notice to the Company, limits such appointment to a specified period of time or restricts it to a specified meeting or action of the Board of Directors, or otherwise restricts its scope, the appointment shall be for all purposes, and for a
period of time concurrent with the term of the appointing Director.
|
(b) |
Any notice to the Company pursuant to Article 39(a) shall be given in person to, or by sending the same by mail to the attention of the Chairperson of the Board of Directors at the principal office of the Company or to such other person or
place as the Board of Directors shall have determined for such purpose, and shall become effective on the date fixed therein, upon the receipt thereof by the Company (at the place as aforesaid) or upon the approval of the appointment by the
Board of Directors, whichever is later.
|
(c) |
An Alternate Director shall have all the rights and obligations of the Director who appointed him, provided however, that (i) he may not in turn appoint an alternate for himself (unless the instrument appointing him otherwise expressly
provides), and (ii) an Alternate Director shall have no standing at any meeting of the Board of Directors or any Committee thereof while the Director who appointed him is present.
|
(d) |
Any individual, who qualifies to be a member of the Board of Directors, may act as an Alternate Director. One person may not act as Alternate Director for several directors or if he is serving as a Director.
|
(e) |
The office of an Alternate Director shall be vacated under the circumstances, mutatis mutandis, set forth in Article 37, and such office shall ipso facto be vacated if the office of the Director who appointed such Alternate Director is
vacated, for any reason.
|
40. |
Meetings.
|
(a) |
The Board of Directors may meet and adjourn its meetings and otherwise regulate such meetings and proceedings as the Directors think fit.
|
(b) |
Any Director may at any time, and the Secretary, upon the request of such Director, shall, convene a meeting of the Board of Directors, but not less than two (2) days' notice shall be given of any meeting so convened, unless such notice is
waived in writing by all of the Directors as to a particular meeting or unless the matters to be discussed at such meeting are of such urgency and importance that notice ought reasonably to be waived under the circumstances.
|
(c) |
Notice of any such meeting shall be given orally, by telephone, in writing or by mail or facsimile or such other means of delivery of notices as the Company may apply, from time to time.
|
(d) |
Notwithstanding anything to the contrary herein, failure to deliver notice to a Director of any such meeting in the manner required hereby may be waived by such Director, and a meeting shall be deemed to have been duly convened
notwithstanding such defective notice if such failure or defect is waived prior to action being taken at such meeting, by all Directors entitled to participate at such meeting to whom notice was not duly given as aforesaid. Without
derogating from the foregoing, no Director present at any time during a meeting of the Board of Directors shall be entitled to seek the cancellation or invalidation of any proceedings or resolutions adopted at such meeting on account of any
defect in the notice of such meeting relating to the date, time or the place thereof or the convening of the meeting.
|
41. |
Quorum.
|
42. |
Chairperson of the Board of Directors.
|
43. |
Validity of Acts Despite Defects.
|
44. |
Chief Executive Officer.
|
(a) |
The Board of Directors shall from time to time appoint one or more persons, whether or not Directors, as Chief Executive Officer of the Company and may confer upon such person(s), and from time to time modify or revoke, such titles and
such duties and authorities of the Board of Directors as the Board of Directors may deem fit, subject to such limitations and restrictions as the Board of Directors may from time to time prescribe. Such appointment(s) may be either for a
fixed term or without any limitation of time, and the Board of Directors may from time to time (subject to any additional approvals required under, and the provisions of, the Companies Law and of any contract between any such person and the
Company) fix their salaries and compensation, remove or dismiss them from office and appoint another or others in his or their place or places.
|
(b) |
Unless otherwise determined by the Board of Directors, the Chief Executive Officer shall have authority with respect to the management and operations of the Company in the ordinary course of business.
|
45. |
Minutes.
|
46. |
Declaration of Dividends.
|
47. |
Amount Payable by Way of Dividends.
|
48. |
Interest.
|
49. |
Capitalization of Profits, Reserves, etc.
|
50. |
Implementation of Powers.
|
51. |
Unclaimed Dividends.
|
52. |
Mechanics of Payment.
|
53. |
Receipt from a Joint Holder.
|
54. |
Books of Account.
|
55. |
Auditors.
|
56. |
Supplementary Registers.
|
57. |
Insurance.
|
(a) |
a breach of duty of care to the Company or to any other person;
|
(b) |
a breach of his duty of loyalty to the Company, provided that the Office Holder acted in good faith and had reasonable grounds to assume that act that resulted in such breach would not prejudice the interests of the Company;
|
(c) |
a financial liability imposed on such Office Holder in respect to his capacity as an Office Holder in favor of any other person; and
|
(d) |
any other event, occurrence, matters or circumstances under any law with respect to which the Company may, or will be able to, insure an Office Holder, and to the extent such law requires the inclusion of a provision permitting such
insurance in these Articles, then such provision is deemed to be included and incorporated herein by reference (including, without limitation, in accordance with Section 56h(b)(1) of the Securities Law, if and to the extent applicable, and
Section 50P of the RTP Law).
|
58. |
Indemnity.
|
(a) |
Subject to the provisions of the Companies Law, the Company may retroactively indemnify an Office Holder of the Company with respect to the following liabilities and expenses, provided that such liabilities or expenses were imposed on such
Office Holder or incurred by such Office Holder due to an act performed by or an omission of the Office Holder in such Office Holder's capacity as an Office Holder of the Company:
|
(b) |
Subject to the provisions of the Companies Law, the Company may undertake to indemnify an Office Holder, in advance, with respect to those liabilities and expenses described in the following Articles:
|
59. |
Exemption.
|
60. |
General.
|
(a) |
Any amendment to the Companies Law adversely affecting the right of any Office Holder to be indemnified or insured pursuant to Articles 57 to 59 and any amendments to Articles 57 to 59 shall be prospective in effect, and shall not affect
the Company’s obligation or ability to indemnify or insure an Office Holder for any act or omission occurring prior to such amendment, unless otherwise provided by applicable law.
|
(b) |
The provisions of Articles 57 to 59 (i) shall apply to the maximum extent permitted by law (including, the Companies Law, the Securities Law and the RTP Law); and (ii) are not intended, and shall not be interpreted so as to restrict the
Company, in any manner, in respect of the procurement of insurance and/or in respect of indemnification (whether in advance or retroactively) and/or exemption, in favor of any person who is not an Office Holder, including, without limitation,
any employee, agent, consultant or contractor of the Company who is not an Office Holder; and/or any Office Holder to the extent that such insurance and/or indemnification is not specifically prohibited under law.
|
61. |
Winding Up.
|
62. |
Notices.
|
(a) |
Any written notice or other document may be served by the Company upon any shareholder either personally, by facsimile, email or other electronic transmission, or by sending it by prepaid mail (airmail if sent internationally) addressed to
such shareholder at his address as described in the Register of Shareholders or such other address as he may have designated in writing for the receipt of notices and other documents.
|
(b) |
Any written notice or other document may be served by any shareholder upon the Company by tendering the same in person to the Secretary or the Chief Executive Officer of the Company at the principal office of the Company, by facsimile
transmission, or by sending it by prepaid registered mail (airmail if posted outside Israel) to the Company at its Office.
|
(c) |
Any such notice or other document shall be deemed to have been served:
|
(d) |
If a notice is, in fact, received by the addressee, it shall be deemed to have been duly served, when received, notwithstanding that it was defectively addressed or failed, in some other respect, to comply with the provisions of this
Article 62.
|
(e) |
All notices to be given to the shareholders shall, with respect to any share to which persons are jointly entitled, be given to whichever of such persons is named first in the Register of Shareholders, and any notice so given shall be
sufficient notice to the holders of such share.
|
(f) |
Any shareholder whose address is not described in the Register of Shareholders, and who shall not have designated in writing an address for the receipt of notices, shall not be entitled to receive any notice from the Company.
|
(g) |
Notwithstanding anything to the contrary contained herein, notice by the Company of a General Meeting, containing the information required by applicable law and these Articles to be set forth therein, which is published, within the time
otherwise required for giving notice of such meeting, in one or more of the following manners (as applicable) shall be deemed to be notice of such meeting duly given, for the purposes of these Articles, to any shareholder whose address as
registered in the Register of Shareholders (or as designated in writing for the receipt of notices and other documents) is located either inside or outside the State of Israel:
|
63. |
Jurisdiction.
|
(a) |
16,231,141 ordinary shares of the Company, no par value (the “Ordinary Shares”, and such 16,231,141 Ordinary Shares, the “Primary
Warrant Shares”), issuable upon the exercise of warrants of the Company (the “BCA Warrants”) that were issued at the closing of the Business Combination Agreement dated as
of December 10, 2020, by and among Collective Growth Corporation, the Company, Hatzata Merger Sub, Inc., Perception Capital Partners LLC and Antara Capital LP (the “BCA”);
|
(b) |
the resale of 12,614,863 Ordinary Shares to be sold by the selling shareholders listed therein (the “Selling Securityholders”, and such 12,614,863 Ordinary Shares, the “Selling Securityholders Shares”); and
|
(c) |
the resale of 3,085,247 warrants by the Selling Securityholders (such warrants, together with the BCA Warrants, the “Warrants”) and the
resale of the Ordinary Shares issuable upon the exercise of such warrants (such 3,085,247 Ordinary Shares, together with the Primary Warrant Shares, the “Warrant Shares”).
|
1. |
The Selling Securityholder Shares have been duly authorized, and are validly issued, fully paid and non-assessable.
|
2. |
The Warrant Shares have been duly authorized, and when any Warrant is exercised pursuant to the terms thereof by a holder thereof, the Warrant Shares issuable at that time by the Company to such Warrant holder will be validly issued, fully
paid and non-assessable.
|
|
Very truly yours,
/s/ Naschitz, Brandes, Amir & Co., Advocates
Naschitz, Brandes, Amir & Co., Advocates
|
![]() |
811 Main Street, Suite 3700
Houston, TX 77002
Tel: +1.713.546.5400 Fax: +1.713.546.5401
www.lw.com
FIRM / AFFILIATE OFFICES
|
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Austin
|
Moscow
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Beijing
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Munich
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Boston
|
New York
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Brussels
|
Orange County
|
||
Century City
|
Paris
|
||
Chicago
|
Riyadh
|
||
Dubai
|
San Diego
|
||
Düsseldorf
|
San Francisco
|
||
Frankfurt
|
Seoul
|
||
Hamburg
|
Shanghai
|
||
Hong Kong
|
Silicon Valley
|
||
Houston
|
Singapore
|
||
London
|
Tel Aviv
|
||
Los Angeles
|
Tokyo
|
||
Madrid
Milan
|
Washington, D.C.
|
|
Sincerely,
/s/ Latham & Watkins
|
/s/ KOST FORER GABBAY & KASIERER
|
Tel-Aviv, Israel
|
A Member of Ernst & Young Global
|
May 24, 2022
|
Security Type
|
Security
Class Title |
Fee
Calculation or Carry Forward Rule |
Amount
Registered |
Proposed
Maximum Offering Price Per Unit |
Maximum
Aggregate Offering Price |
Fee Rate
|
Amount of
Registration Fee |
Carry
Forward Form Type |
Carry
Forward File Number |
Carry
Forward Initial effective date |
Filing Fee
Previously Paid In Connection with Unsold Securities to be Carried Forward |
||||||||||||||||||||||||||||||
Newly Registered Securities
|
|||||||||||||||||||||||||||||||||||||||||
Fees to
Be Paid
|
|||||||||||||||||||||||||||||||||||||||||
Secondary Offering
|
|||||||||||||||||||||||||||||||||||||||||
Equity
|
Ordinary Shares, no par value per share(4)
|
Other
|
4,271,750
|
$4.16(5)
|
17,770,000.00
|
0.0000927
|
$1,647.32
|
||||||||||||||||||||||||||||||||||
Equity
|
Warrants(6)
|
Other
|
20,000
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||||||||||||
Equity
|
Ordinary Shares, no par value per share(7)
|
Other
|
20,000
|
$4.16(5)
|
$83,200.00
|
0.0000927
|
$7.71
|
||||||||||||||||||||||||||||||||||
Carry Forward Securities
|
|||||||||||||||||||||||||||||||||||||||||
Primary Offering
|
|||||||||||||||||||||||||||||||||||||||||
Equity
|
Ordinary Shares, no par value per share(8)
|
415(a)(6)
|
16,231,141
|
(9)
|
$186,658,122
|
F-1
|
333-258203
|
August 5, 2021
|
$20,364.40
|
||||||||||||||||||||||||||||||||
Secondary Offering
|
|||||||||||||||||||||||||||||||||||||||||
Equity
|
Ordinary Shares, no par value per share(4)
|
415(a)(6)
|
8,268,113
|
(9)
|
$72,842,175.50
|
F-1
|
333-258203
|
August 5, 2021
|
$7,947.07
|
||||||||||||||||||||||||||||||||
Equity
|
Warrants(6)
|
415(a)(6)
|
3,065,247
|
—
|
—
|
F-1
|
333-258203
|
August 5, 2021
|
—
|
||||||||||||||||||||||||||||||||
Equity
|
Ordinary Shares, no par value per share(7)
|
415(a)(6)
|
3,065,247
|
(9)
|
$27,004,826
|
F-1
|
333-258203
|
August 5, 2021
|
$2,946.23
|
Total Offering Amounts
|
|
$
|
32,912.73
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Total Fees Previously Paid
|
$
|
31,257.70
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Total Fee Offsets
|
$
|
—
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Net Fee Due
|
$
|
1,655.03
|
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