As
filed with the Securities and Exchange Commission on January 26, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
F-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Foresight
Autonomous Holdings Ltd.
(Exact name of Registrant as specified in its charter)
Israel |
|
Not
Applicable |
(State
or other jurisdiction of |
|
(I.R.S.
Employer |
incorporation
or organization) |
|
Identification
No.) |
7
Golda Meir
Ness Ziona
7414001 Israel
+972-077-9709030
(Address and Telephone Number of Registrant’s Principal Executive Offices)
Sullivan
& Worcester LLP
1633
Broadway
New
York, NY 10019
Tel:
212.660.5000
(Name,
Address, and Telephone Number of Agent for Service)
Copies
to:
Oded
Har-Even, Esq.
Ron
Ben-Bassat, Esq.
Sullivan
& Worcester LLP
1633
Broadway
New
York, NY 10019
(212)
660-5000 |
Gregory
Irgo, Adv.
Lipa
Meir & Co
2
Weitzman St.
Tel
Aviv 6423902, Israel
(972)
3-607-0690 |
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. ☒
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. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging
growth company ☒
If
an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided
pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
† |
The
term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards
Board to its Accounting Standards Codification after April 5, 2012. |
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.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell securities and it is not soliciting
an offer to buy securities in any state where the offer or sale is not permitted.
Subject
to Completion, Dated January 26, 2024
$50,000,000
American
Depositary Shares Representing Ordinary Shares
We
may offer and sell from time to time in one or more offerings up to a total amount of $50,000,000 of American Depositary Shares, or ADSs.
Each ADS represents thirty of our ordinary shares, or the Ordinary Shares, no par value. Each time we sell ADSs pursuant to this prospectus,
we will provide in a supplement to this prospectus the price and any other material terms of any such offering. We may also authorize
one or more free writing prospectuses to be provided to you in connection with each offering. Any prospectus supplement and related free
writing prospectuses may also add, update or change information contained in the prospectus. You should read this prospectus, any applicable
prospectus supplement and related free writing prospectuses, as well as the documents incorporated by reference or deemed incorporated
by reference into this prospectus, carefully before you invest in the ADSs.
The
ADSs are traded on the Nasdaq Capital Market under the symbol “FRSX.”
The
aggregate market value of our ADSs held by non-affiliates as of January 26, 2024 pursuant to General Instruction I.B.5 of Form F-3 is
$29,053,354, which was calculated based on 14,172,368 ADSs outstanding held by non-affiliates and at a price of $2.05 per ADS, the closing
price of our ADSs on November 29, 2023. We have sold an aggregate of approximately $4,666,340 of securities pursuant to General
Instruction I.B.5. of Form F-3 during the 12-calendar month calendar period that ends on, and includes, the date of this prospectus supplement
and, as a result, the capacity to sell securities under our Form F-3 Registration Statement pursuant to General Instruction I.B.5. is
currently $5,018,111.
Investing
in the ADSs involves a high degree of risk. Risks associated with an investment in the ADSs will be described in any applicable prospectus
supplement and are and will be described in certain of our filings with the Securities and Exchange Commission, or the SEC, as described
in “Risk Factors” on page 3.
The
ADSs may be sold directly by us to investors, through agents designated from time to time or to or through underwriters or dealers, or
through a combination of such methods, on a continuous or delayed basis. For additional information on the methods of sale, you should
refer to the section entitled “Plan of Distribution” in this prospectus. If any agents or underwriters are involved in the
sale of the ADSs with respect to which this prospectus is being delivered, the names of such agents or underwriters and any applicable
fees, commissions, discounts and over-allotment options will be set forth in a prospectus supplement. The price to the public of the
ADSs and the net proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement.
Neither
the SEC nor any state securities commission has approved or disapproved of these securities or passed on completeness or the adequacy
or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2024
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form F-3 that we filed with the SEC utilizing a “shelf” registration process.
Under this shelf registration process, we may offer from time to time up to an aggregate of $50,000,000 of the ADSs in one or more offerings.
We sometimes refer to the ADSs as the “securities” throughout this prospectus.
Each
time we sell ADSs, we will provide you with a prospectus supplement that will describe the specific amounts, prices and terms of such
offering. We may also authorize one or more free writing prospectuses to be provided to you in connection with such offering. The prospectus
supplement and any related free writing prospectuses may also add, update or change information contained in this prospectus. You should
read carefully both this prospectus, the applicable prospectus supplement, the documents incorporated by reference into this prospectus
and any related free writing prospectus together with additional information described below under “Where You Can Find More Information
and Incorporation of Certain Information by Reference” before buying the ADSs being offered.
This
prospectus does not contain all of the information provided in the registration statement that we filed with the SEC. For further information
about us or the ADSs, you should refer to that registration statement, which you can obtain from the SEC as described below under “Where
You Can Find More Information and Incorporation of Certain Information by Reference.”
You
should rely only on the information contained or incorporated by reference in this prospectus, a prospectus supplement and related free
writing prospectuses. Neither we, nor any agent, underwriter or dealer has authorized any other person to provide you with different
information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale
is not permitted. You should not assume that the information contained in this prospectus and the accompanying prospectus supplement
or related free writing prospectuses is accurate on any date subsequent to the date set forth on the front of the document or that any
information that we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference.
Our business, financial condition, results of operations and prospects may have changed since those dates.
In
this prospectus, references to the terms “Foresight,” “the Company,” “we,” “us,” “our”
and similar terms, refer to Foresight Autonomous Holdings Ltd., unless we state or the context implies otherwise. References to “Ordinary
Shares” mean our Ordinary Shares, no par value.
Unless
derived from our financial statements or otherwise indicated, U.S. dollar translations of New Israeli Shekels, or NIS, amounts presented
in this prospectus are translated using a rate of NIS 3.772 to USD 1.00.
ABOUT
FORESIGHT AUTONOMOUS HOLDINGS LTD.
This
summary highlights information contained in the documents incorporated herein by reference. Before making an investment decision, you
should read the entire prospectus, and our other filings with the SEC, including those filings incorporated herein by reference, carefully,
including the sections entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.”
Overview
We
are a technology company engaged in development of smart multi-spectral 3D vision software solutions and cellular-based applications.
Through our wholly owned subsidiaries, Foresight Automotive, Foresight Changzhou and Eye-Net Mobile, we develop both “in-line-of-sight”
vision solutions and “beyond-line-of-sight” accident-prevention solutions.
Our
3D vision solutions include modules of automatic calibration and dense three-dimensional (3D) point cloud that can be applied to diverse
markets such as automotive, defense, autonomous vehicles, agriculture and heavy industrial equipment. Eye-Net Mobile’s cellular-based
solution suite provides real-time pre-collision alerts to enhance road safety and situational awareness for all road users in the urban
mobility environment by incorporating cutting-edge artificial intelligence (AI) technology and advanced analytics.
Company
Information
Our
registered office and principal place of business is located at Foresight Autonomous Holdings Ltd., 7 Golda Meir St., Ness Ziona 7403650,
Israel. Our telephone number in Israel is +972-77-9709030. Our website address is www.foresightauto.com. The information contained on
our website or available through our website is not incorporated by reference into and should not be considered a part of this prospectus.
RISK
FACTORS
Investing
in our securities involves significant risks. Before making an investment decision, you should carefully consider the risks described
under “Risk Factors” in the applicable prospectus supplement and under “Item 3. Key Information - D. Risk Factors,”
in our most recent Annual Report on Form 20-F, or any updates in our Reports on Form 6-K, together with all of the other information
appearing in this prospectus or incorporated by reference into this prospectus and any applicable prospectus supplement, in light of
your particular investment objectives and financial circumstances. The risks so described are not the only risks facing us. Additional
risks not presently known to us or that we currently deem immaterial may also impair our business operations. Our business, financial
condition and results of operations could be materially adversely affected by any of these risks. The trading price of our securities
could decline due to any of these risks, and you may lose all or part of your investment. The discussion of risks includes or refers
to forward-looking statements; you should read the explanation of the qualifications and limitations on such forward-looking statements
discussed elsewhere in this prospectus.
Our
principal executive offices and other significant operations are located in Israel, and, therefore, our results may be adversely affected
by political, economic and military instability in Israel, including the recent attack by Hamas and other terrorist organizations from
the Gaza Strip and Israel’s war against them.
Our
executive offices and corporate headquarters are located in Israel. In addition, most of our officers are residents of Israel. Accordingly,
political, economic and military and security conditions in Israel and the surrounding region may directly affect our business. Any conflicts,
political instability, terrorism, cyberattacks or any other hostilities involving Israel or the interruption or curtailment of trade
between Israel and its present trading partners could adversely affect our operations. Ongoing and revived hostilities in the Middle
East or other Israeli political or economic factors, could harm our operations.
In
October 2023, Hamas terrorists infiltrated Israel’s southern border from the Gaza Strip and conducted a series of attacks on civilian
and military targets. Hamas also launched extensive rocket attacks on Israeli population and industrial centers located along Israel’s
border with the Gaza Strip and in other areas within the State of Israel. These attacks resulted in extensive deaths, injuries and kidnapping
of civilians and soldiers. Following the attack, Israel’s security cabinet declared war against Hamas and a military campaign against
these terrorist organizations commenced in parallel to their continued rocket and terror attacks.
The
intensity and duration of Israel’s current war against Hamas is difficult to predict, as are such war’s economic implications
on the Company’s business and operations and on Israel’s economy in general. These events may be intertwined with wider macroeconomic
indications of a deterioration of Israel’s economic standing, which may have a material adverse effect on the Company and its ability
to effectively conduct some of its operations.
In
connection with the Israeli security cabinet’s declaration of war against Hamas and possible hostilities with other organizations,
several hundred thousand Israeli military reservists were drafted to perform immediate military service. Certain of our employees and
consultants (and their spouses or partners) in Israel have been called, and additional employees (or their spouses or partners) may be
called, for service in the current or future wars or other armed conflicts with Hamas, and such persons may be absent for an extended
period of time. As a result, our operations in Israel may be disrupted by such absences, which disruption may materially and adversely
affect our business, prospects, financial condition and results of operations.
Following
the attack by Hamas on Israel’s southern border, Hezbollah in Lebanon has also launched missile, rocket and shooting attacks against
Israeli military sites, troops, and Israeli towns in northern Israel. In response to these attacks, the Israeli army has carried out
a number of targeted strikes on sites belonging to Hezbollah in southern Lebanon. It is possible that other terrorist organizations,
including Palestinian military organizations in the West Bank, as well as other hostile countries, such as Iran, will join the hostilities.
Such hostilities may include terror and missile attacks. Any hostilities involving Israel or the interruption or curtailment of trade
between Israel and its trading partners could adversely affect our operations and results of operations. Our commercial insurance does
not cover losses that may occur as a result of events associated with war and terrorism.
Although
the Israeli government currently covers the reinstatement value of direct damages that are caused by terrorist attacks or acts of war,
we cannot assure you that this government coverage will be maintained or that it will sufficiently cover our potential damages. Any losses
or damages incurred by us could have a material adverse effect on our business. Any armed conflicts or political instability in the region
would likely negatively affect business conditions and could harm our results of operations.
Further,
in the past, the State of Israel and Israeli companies have been subjected to economic boycotts. Several countries still restrict business
with the State of Israel and with Israeli companies. These restrictive laws and policies may have an adverse impact on our operating
results, financial condition or the expansion of our business. A campaign of boycotts, divestment and sanctions has been undertaken against
Israel, which could also adversely impact our business.
Prior
to the Hamas attack in October 2023, the Israeli government pursued extensive changes to Israel’s judicial system. In response
to the foregoing developments, individuals, organizations and institutions, both within and outside of Israel, have voiced concerns that
the proposed changes may negatively impact the business environment in Israel including due to reluctance of foreign investors to invest
or transact business in Israel as well as to increased currency fluctuations, downgrades in credit rating, increased interest rates,
increased volatility in securities markets, and other changes in macroeconomic conditions. The risk of such negative developments has
increased in light of the recent Hamas attacks and the war against Hamas declared by Israel, regardless of the proposed changes to the
judicial system and the related debate. To the extent that any of these negative developments do occur, they may have an adverse effect
on our business, our results of operations and our ability to raise additional funds, if deemed necessary by our management and board
of directors.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains and any prospectus supplement may contain, and certain information incorporated by reference in this prospectus and
any prospectus supplement may contain, “forward-looking statements”. Forward-looking statements are often characterized by
the use of forward-looking terminology such as “may,” “will,” “expect,” “anticipate,”
“estimate,” “continue,” “believe,” “should,” “intend,” “project”
or other similar words, but are not the only way these statements are identified.
These
forward-looking statements may include, but are not limited to, statements relating to our objectives, plans and strategies, statements
that contain projections of results of operations or of financial condition, statements relating to the research, development and use
of our products, and all statements (other than statements of historical facts) that address activities, events or developments that
we intend, expect, project, believe or anticipate will or may occur in the future.
Forward-looking
statements are not guarantees of future performance and are subject to risks and uncertainties. We have based these forward-looking statements
on assumptions and assessments made by our management in light of their experience and their perception of historical trends, current
conditions, expected future developments and other factors they believe to be appropriate.
Important
factors that could cause actual results, developments and business decisions to differ materially from those anticipated in these forward-looking
statements include, among other things:
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● |
the
overall global economic environment; |
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● |
the
impact of competition and new technologies; |
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● |
general
market, political and economic conditions in the countries in which we operate including these related to recent unrest and actual
or potential armed conflict in Israel and other parts of the Middle East, such as the recent attack by Hamas and other terrorist
organizations from the Gaza Strip and Israel’s war against them; |
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|
|
● |
projected
capital expenditures and liquidity; |
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|
● |
changes
in our strategy; |
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|
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|
● |
litigation;
and |
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● |
those
factors referred to in our most recent Annual Report on Form 20-F in “Item 3. Key Information - D. Risk Factors,” “Item
4. Information on the Company,” and “Item 5. Operating and Financial Review and Prospects,” as well as in our Annual
Report on Form 20-F generally, which is incorporated by reference into this prospectus. |
Readers
are urged to carefully review and consider the various disclosures made throughout this prospectus and any prospectus supplement, which
are designed to advise interested parties of the risks and factors that may affect our business, financial condition, results of operations
and prospects.
You
should not put undue reliance on any forward-looking statements. Any forward-looking statements are made as of the date hereof, and we
undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events
or otherwise, except as required by law.
CAPITALIZATION
The
following table sets forth our total liabilities and shareholders’ equity as of September 30, 2023, and December 31, 2022. The
financial data in the following table is derived from our interim unaudited financial statements as of September 30, 2023, and our audited
financial statements as of December 31, 2022, as applicable, and should be read in conjunction with such financial statements, which
have been incorporated by reference in this prospectus.
(U.S.
dollars, in thousands) | |
As
of September 30, 2023 | | |
As
of December 31, 2022 | |
Cash
and cash equivalents | |
$ | 14,104 | | |
$ | 19,173 | |
Short
term deposits | |
| - | | |
| 7,216 | |
Shareholders’
equity: | |
| | | |
| | |
Ordinary
shares, no par value; Authorized 1,000,000,000 shares; Issued and outstanding: 324,778,056 and 322,979,556 shares as of September
30, 2023, and December 31, 2022, respectively | |
| | | |
| | |
Additional
paid in capital | |
| 130,996 | | |
| 129,810 | |
Accumulated
deficit | |
| (116,337 | ) | |
| (101,480 | ) |
Total
Foresight Autonomous Holdings Ltd. shareholders’ equity | |
| 14,659 | | |
| 28,330 | |
Total
equity | |
$ | 15,244 | | |
$ | 28,783 | |
REASONS
FOR THE OFFER AND USE OF PROCEEDS
Unless
otherwise set forth in the related prospectus supplement or, if applicable, the pricing supplement, we intend to use the net proceeds
from the sale of securities offered through this prospectus for general corporate purposes, which include financing our operations, capital
expenditures and business development. The specific purpose of any individual issuance of securities will be described in the related
prospectus supplement.
DESCRIPTION
OF OUR ORDINARY SHARES
The
following description of our share capital and provisions of our amended and restated articles of association are summaries and do not
purport to be complete.
Ordinary
Shares
As
of January 26, 2024, our authorized share capital consisted of 1,000,000,000 of our Ordinary Shares, of which 459,778,056 Ordinary Shares
were issued and outstanding. All of our outstanding Ordinary Shares have been validly issued and are fully paid and non-assessable.
As
of January 26, 2024, an additional 37,984,464 of our Ordinary Shares were issuable upon the exercise of outstanding warrants and options
to purchase our Ordinary Shares. The exercise price of the options outstanding ranges between NIS 0.5 (approximately $0.13) and NIS 4.75
(approximately $1.26) per share.
Our
registration number with the Israeli Registrar of Companies is 52-003606-2.
Purposes
and Objects of the Company
Our
purpose is set forth in Section 3 of our amended and restated articles of association and includes every lawful purpose.
The
Powers of the Directors
Our
Board of Directors shall direct our policy and shall supervise the performance of our chief executive officer and his actions. Our Board
of Directors may exercise all powers that are not required under the Israeli Companies Law 5759-1999, or the Companies Law, or under
our amended and restated articles of association to be exercised or taken by our shareholders or management.
Rights
Attached to Shares
Our
Ordinary Shares shall confer upon the holders thereof:
|
● |
equal
right to attend and to vote at all of our general meetings, whether regular or special, with each Ordinary Share entitling the holder
thereof, which attend the meeting and participate at the voting, either in person, electronically, or by a proxy or by a written
ballot, to one vote; |
|
● |
equal
right to participate in distribution of dividends, if any, whether payable in cash or in bonus shares, in distribution of assets
or in any other distribution, on a per share pro rata basis; and |
|
● |
equal
right to participate, upon our dissolution, in the distribution of our assets legally available for distribution, on a per share
pro rata basis. |
Shareholder’s
rights of inspection of the Company records
Pursuant
to the Companies Law, shareholders have the right to inspect the Company documents that are specified below:
|
(1) |
minutes
of the general meetings; |
|
(2) |
the
Company’s shareholders register and the register of substantial shareholders; |
|
(3) |
a
document in the company’s possession, relating to an act or transaction with interested parties that requires approval by the
general meeting; |
|
(4) |
articles
of association and financial reports; and |
|
(5) |
any
document that the company must submit under the Companies Law and under any statute to the Companies Registrar or to the Israeli
Securities Authority and that is available for public inspection at the Companies Registrar or the Israeli Securities Authority,
as the case may be. |
Election
of Directors
Pursuant
to the Companies Laws and our amended and restated articles of association, our directors, except external directors, are elected at
an annual general meeting and/or a special meeting of our shareholders and serve on the board of directors until the next annual general
meeting of our shareholders following their appointment or until they resign or unless they are removed by a majority vote of our shareholders
at a general meeting of our shareholders or upon the occurrence of certain events, in accordance with the Companies Law and our amended
and restated articles of association. In addition, in the event the number of members of our Board of Directors drops below the minimum
number of three members, our amended and restated articles of association allow our Board of Directors to appoint directors to fill vacancies
on the Board of Directors (subject to the maximum number of directors of ten) to serve until the next annual general meeting. External
directors are elected for an initial term of three years, may be elected for additional terms of three years each under certain circumstances
and may be removed from office pursuant to the terms of the Companies Law.
Annual
and Special Meetings
Under
the Israeli law, we are required to hold an annual general meeting of our shareholders once every calendar year, at such time and place
which shall be determined by our Board of Directors, which must be held no later than 15 months after the date of the previous annual
general meeting. All meetings other than the annual general meeting of shareholders are referred to as special general meetings. Our
Board of Directors may call special meetings whenever it sees fit and upon the written request of: (a) any two of our directors or one
quarter of the members of our Board of Directors; and/or (b) one or more shareholders holding, in the aggregate, either (i) 5% or more
of our outstanding issued shares and 1% of our outstanding voting power or (ii) 5% or more of our outstanding voting power.
Subject
to the provisions of the Companies Law and the regulations promulgated thereunder, shareholders entitled to participate and vote at general
meetings are the shareholders of record on a date to be decided by the board of directors, which may be between four and forty days prior
to the date of the meeting. The Companies Law and our amended and restated articles of association require that resolutions regarding
the following matters must be passed at a general meeting of our shareholders:
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● |
amendments
to our amended and restated articles of association; |
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the
exercise of our Board of Director’s powers by a general meeting if our Board of Directors is unable to exercise its powers
and the exercise of any of its powers is required for our proper management; |
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● |
appointment
or termination of our auditors; |
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● |
appointment
of directors, including external directors; |
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● |
approval
of acts and transactions requiring general meeting approval pursuant to the provisions of the Companies Law and any other applicable
law; |
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● |
increases
or reductions of our authorized share capital; and |
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● |
a
merger (as such term is defined in the Companies Law). |
Notices
The
Companies Law and our articles of association require that a notice of any annual or special shareholders meeting be provided to shareholders
at least 21 days prior to the meeting, and if the agenda of the meeting includes, among other matters, the appointment or removal of
directors, the approval of transactions with office holders or interested or related parties, or an approval of a merger, notice must
be provided at least 35 days prior to the meeting.
Quorum
As
permitted under the Companies Law, the quorum required for our general meetings consists of at least two shareholders present in person,
by proxy or written ballot, who hold or represent between them at least 1/3 of the total outstanding voting rights. If within half an
hour of the time set forth for the general meeting a quorum is not present, the general meeting shall stand adjourned the same day of
the following week, at the same hour and in the same place, or to such other date, time and place as prescribed in the notice to the
shareholders and in such adjourned meeting, if no quorum is present within half an hour of the time arranged, any number of shareholders
participating in the meeting, shall constitute a quorum.
In
the absence of a quorum in a special general meeting that was summoned following the request of a shareholder, the meeting shall be canceled.
Adoption
of Resolutions
Our
amended and restated articles of association provide that all resolutions of our shareholders require a simple majority vote, unless
otherwise required under the Companies Law or our amended and restated articles of association. A shareholder may vote in a general meeting
in person, electronically, by proxy or by a written ballot.
Changing
Rights Attached to Shares
Unless
otherwise provided by the terms of the shares and subject to any applicable law, in order to change the rights attached to any class
of shares, such change must be adopted by the board of directors and at a general meeting of the affected class or by a written consent
of all the shareholders of the affected class.
The
enlargement of an existing class of shares or the issuance of additional shares thereof, shall not be deemed to modify the rights attached
to the previously issued shares of such class or of any other class, unless otherwise provided by the terms of the shares.
Provisions
Restricting Change in Control of Our Company
There
are no specific provisions of our amended and restated articles of association that would have an effect of delaying, deferring or preventing
a change in control of us or that would operate only with respect to a merger, acquisition or corporate restructuring involving us (or
Foresight Automotive Ltd. and Eye-Net Ltd., our wholly owned subsidiaries). However, as described below, certain provisions of the Companies
Law may have such effect.
The
Companies Law includes provisions that allow a merger transaction and requires that each company that is a party to the merger have the
transaction approved by its board of directors and, unless certain requirements described under the Companies Law are met, a vote of
the majority of its shareholders, and, in the case of the target company, also a majority vote of each class of its shares. For purposes
of the shareholder vote of each party, unless a court rules otherwise, the merger will not be deemed approved if shares representing
a majority of the voting power present at the shareholders meeting and which are not held by the other party to the merger (or by any
person or group of persons acting in concert who holds 25% or more of the voting power or the right to appoint 25% or more of the directors
of the other party) vote against the merger. If, however, the merger involves a merger with a company’s own controlling shareholder
or if the controlling shareholder has a personal interest in the merger, then the merger is instead subject to the same special majority
approval that governs all extraordinary transactions with controlling shareholders. Upon the request of a creditor of either party to
the proposed merger, the court may delay or prevent the merger if it concludes that there exists a reasonable concern that, as a result
of the merger, the surviving company will be unable to satisfy the obligations of any of the parties to the merger, and may further give
instructions to secure the rights of creditors. In addition, a merger may not be completed unless at least (1) 50 days have passed from
the time that the requisite proposals for approval of the merger were filed with the Israeli Registrar of Companies by each merging company
and (2) 30 days have passed since the merger was approved by the shareholders of each merging company.
The
Companies Law also provides that an acquisition of shares in an Israeli public company must be made by means of a “special”
tender offer if as a result of the acquisition (1) the purchaser would become a holder of 25% or more of the voting rights in the company,
unless there is already another holder of at least 25% or more of the voting rights in the company or (2) the purchaser would become
a holder of 45% or more of the voting rights in the company, unless there is already a holder of more than 45% of the voting rights in
the company. These requirements do not apply if, in general, the acquisition (1) was made in a private placement that received shareholders’
approval, subject to certain conditions, (2) was from a holder of 25% or more of the voting rights in the company which resulted in the
acquirer becoming a holder of 25% or more of the voting rights in the company, or (3) was from a holder of more than 45% of the voting
rights in the company which resulted in the acquirer becoming a holder of more than 45% of the voting rights in the company. A “special”
tender offer must be extended to all shareholders. In general, a “special” tender offer may be consummated only if (1) at
least 5% of the voting power attached to the company’s outstanding shares will be acquired by the offeror and (2) the offer is
accepted by a majority of the offerees who notified the company of their position in connection with such offer (excluding the offeror,
controlling shareholders, holders of 25% or more of the voting rights in the company or anyone on their behalf, or any person having
a personal interest in the acceptance of the tender offer). If a special tender offer is accepted, then the purchaser or any person or
entity controlling it or under common control with the purchaser or such controlling person or entity may not make a subsequent tender
offer for the purchase of shares of the target company and may not enter into a merger with the target company for a period of one year
from the date of the offer, unless the purchaser or such person or entity undertook to effect such an offer or merger in the initial
special tender offer.
If,
as a result of an acquisition of shares, the acquirer will hold more than 90% of an Israeli public company’s outstanding shares,
the acquisition must be made by means of a tender offer for all of the outstanding shares. In general, if less than 5% of the outstanding
shares are not tendered in the tender offer and more than half of the offerees who have no personal interest in the offer tendered their
shares, all the shares that the acquirer offered to purchase will be transferred to it by operation of law. However, a tender offer will
also be accepted if the shareholders who do not accept the offer hold less than 2% of the issued and outstanding share capital of the
company or of the applicable class of shares. Shareholders may request appraisal rights in connection with a full tender offer for a
period of six months following the consummation of the tender offer, but the acquirer is entitled to stipulate, under certain conditions,
that tendering shareholders will forfeit such appraisal rights.
Lastly,
Israeli tax law treats some acquisitions, such as stock-for-stock exchanges between an Israeli company and a foreign company, less favorably
than U.S. tax laws. For example, Israeli tax law may, under certain circumstances, subject a shareholder who exchanges his Ordinary Shares
for shares in another corporation to taxation prior to the sale of the shares received in such stock-for-stock swap.
Changes
in Our Capital
The
general meeting may, by a simple majority vote of the shareholders attending the general meeting and subject to the provisions of the
Companies Law:
|
● |
increase
our registered share capital by the creation of new shares from the existing class or a new class, as determined by the general meeting; |
|
● |
cancel
any registered share capital which have not been taken or agreed to be taken by any person; |
|
● |
consolidate
and divide all or any of our share capital into shares of larger nominal value than our existing shares; |
|
● |
subdivide
our existing shares or any of them, our share capital or any of it, into shares of smaller nominal value than is fixed; and |
|
● |
reduce
our share capital and any fund reserved for capital redemption in any manner, and with and subject to any incident authorized, and
consent required by the Companies Law. |
DESCRIPTION
OF THE AMERICAN DEPOSITARY SHARES
The
Bank of New York Mellon, as depositary, registered and delivered the ADSs. Each ADS represents thirty Ordinary Shares (or a right to
receive thirty Ordinary Shares) deposited with either the principal Tel Aviv office of the Bank Hapoalim or Leumi bank, as custodian
for the depositary. Each ADS also represents any other securities, cash or other property which may be held by the depositary. The deposited
shares together with any other securities, cash or other property held by the depositary are referred to as the deposited securities.
The depositary’s office at which the ADSs will be administered is located at 101 Barclay Street, New York, New York 10286. The
Bank of New York Mellon’s principal executive office is located at 240 Greenwich Street, New York, New York 10286.
You
may hold ADSs either (A) directly (i) by having an American Depositary Receipt, also referred to as an ADR, which is a certificate evidencing
a specific number of ADSs, registered in your name, or (ii) by having unregistered ADSs registered in your name, or (B) indirectly by
holding a security entitlement in ADSs through your broker or other financial institution that is a direct or indirect participant in
the Depositary Trust Company, or DTC. If you hold ADSs directly, you are a registered ADS holder, also referred to as an ADS holder.
This description assumes you are an ADS holder. If you hold the ADSs indirectly, you must rely on the procedures of your broker or other
financial institution to assert the rights of ADS holders described in this section. You should consult with your broker or financial
institution to find out what those procedures are.
Registered
holders of uncertificated ADSs will receive statements from the depositary confirming their holdings.
As
an ADS holder, we will not treat you as one of our shareholders and you will not have shareholder rights. Israeli law governs shareholder
rights. The depositary will be the holder of the shares underlying your ADSs. As a registered holder of ADSs, you will have ADS holder
rights. A deposit agreement among us, the depositary, ADS holders, and all other persons indirectly or beneficially holding ADSs sets
out ADS holder rights as well as the rights and obligations of the depositary. New York law governs the deposit agreement and the ADSs.
The
following is a summary of the material provisions of the deposit agreement. For more complete information, you should read the entire
deposit agreement and the form of ADR.
Dividends
and Other Distributions
How
will you receive dividends and other distributions on the shares?
The
depositary has agreed to pay or distribute to ADS holders the cash dividends or other distributions it or the custodian receives on shares
or other deposited securities, upon payment or deduction of its fees and expenses. You will receive these distributions in proportion
to the number of shares your ADSs represent.
Cash.
The depositary will convert any cash dividend or other cash distribution we pay on the shares into U.S. dollars, if it can do so on a
reasonable basis and can transfer the U.S. dollars to the United States. If that is not possible or if any government approval is needed
and cannot be obtained, the deposit agreement allows the depositary to distribute the foreign currency only to those ADS holders to whom
it is possible to do so. It will hold the foreign currency it cannot convert for the account of the ADS holders who have not been paid.
It will not invest the foreign currency and it will not be liable for any interest.
Before
making a distribution, any withholding taxes, or other governmental charges that must be paid will be deducted. It will distribute only
whole U.S. dollars and cents and will round fractional cents to the nearest whole cent. If the exchange rates fluctuate during
a time when the depositary cannot convert the foreign currency, you may lose some or all of the value of the distribution.
Shares.
The depositary may distribute additional ADSs representing any shares we distribute as a dividend or free distribution. The depositary
will only distribute whole ADSs. It will sell shares which would require it to deliver a fraction of an ADS (or ADSs representing those
shares) and distribute the net proceeds in the same way as it does with cash. If the depositary does not distribute additional ADSs,
the outstanding ADSs will also represent the new shares. The depositary may sell a portion of the distributed shares (or ADSs representing
those shares) sufficient to pay its fees and expenses in connection with that distribution.
Rights
to purchase additional shares. If we offer holders of our securities any rights to subscribe for additional shares or any other rights,
the depositary may (i) exercise those rights on behalf of ADS holders, (ii) distribute those rights to ADS holders or (iii) sell those
rights and distribute the net proceeds to ADS holders, in each case after deduction or upon payment of its fees and expenses. To the
extent the depositary does not do any of those things, it will allow the rights to lapse. In that case, you will receive no value for
them. The depositary will exercise or distribute rights only if we ask it to and provide satisfactory assurances to the depositary that
it is legal to do so. If the depositary will exercise rights, it will purchase the securities to which the rights relate and distribute
those securities or, in the case of shares, new ADSs representing the new shares, to subscribing ADS holders, but only if ADS holders
have paid the exercise price to the depositary. U.S. securities laws may restrict the ability of the depositary to distribute rights
or ADSs or other securities issued on exercise of rights to all or certain ADS holders, and the securities distributed may be subject
to restrictions on transfer.
Other
Distributions. The depositary will send to ADS holders anything else we distribute on deposited securities by any means it thinks
is legal, fair and practical. If it cannot make the distribution in that way, the depositary has a choice. It may decide to sell what
we distributed and distribute the net proceeds, in the same way as it does with cash. Or, it may decide to hold what we distributed,
in which case ADSs will also represent the newly distributed property. However, the depositary is not required to distribute any securities
(other than ADSs) to ADS holders unless it receives satisfactory evidence from us that it is legal to make that distribution. The depositary
may sell a portion of the distributed securities or property sufficient to pay its fees and expenses in connection with that distribution.
U.S. securities laws may restrict the ability of the depositary to distribute securities to all or certain ADS holders, and the securities
distributed may be subject to restrictions on transfer.
The
depositary is not responsible if it decides that it is unlawful or impractical to make a distribution available to any ADS holders. We
have no obligation to register ADSs, shares, rights or other securities under the Securities Act. We also have no obligation to take
any other action to permit the distribution of ADSs, shares, rights or anything else to ADS holders. This means that you may not receive
the distributions we make on our shares or any value for them if it is illegal or impractical for us to make them available to you.
Deposit,
Withdrawal and Cancellation
How
are ADSs issued?
The
depositary will deliver ADSs if you or your broker deposits shares or evidence of rights to receive shares with the custodian. Upon payment
of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the depositary will register
the appropriate number of ADSs in the names you request and will deliver the ADSs to or upon the order of the person or persons that
made the deposit.
How
can ADS holders withdraw the deposited securities?
You
may surrender your ADSs to the depositary for the purpose of withdrawal. Upon payment of its fees and expenses and of any taxes or charges,
such as stamp taxes or stock transfer taxes or fees, the depositary will deliver the shares and any other deposited securities underlying
the ADSs to the ADS holder or a person the ADS holder designates at the office of the custodian. Or, at your request, risk and expense,
the depositary will deliver the deposited securities at its office, if feasible. However, the depositary is not required to accept surrender
of ADSs to the extent it would require delivery of a fraction of a deposited share or other security. The depositary may charge you a
fee and its expenses for instructing the custodian regarding delivery of deposited securities.
How
do ADS holders interchange between certificated ADSs and uncertificated ADSs?
You
may surrender your ADR to the depositary for the purpose of exchanging your ADR for uncertificated ADSs. The depositary will cancel that
ADR and will send to the ADS holder a statement confirming that the ADS holder is the registered holder of uncertificated ADSs. Upon
receipt by the depositary of a proper instruction from a registered holder of uncertificated ADSs requesting the exchange of uncertificated
ADSs for certificated ADSs, the depositary will execute and deliver to the ADS holder an ADR evidencing those ADSs.
Voting
Rights
How
do you vote?
ADS
holders may instruct the depositary how to vote the number of deposited shares their ADSs represent. If we request the depositary to
solicit your voting instructions (and we are not required to do so), the depositary will notify you of a shareholders’ meeting
and send or make voting materials available to you. Those materials will describe the matters to be voted on and explain how ADS holders
may instruct the depositary how to vote. For instructions to be valid, they must reach the depositary by a date set by the depositary.
The depositary will try, as far as practical, subject to the laws of Israel and the provisions of our amended and restated articles of
association or similar documents, to vote or to have its agents vote the shares or other deposited securities as instructed by ADS holders.
If we do not request the depositary to solicit your voting instructions, you can still send voting instructions, and, in that case, the
depositary may try to vote as you instruct, but it is not required to do so.
Except
by instructing the depositary as described above, you won’t be able to exercise voting rights unless you surrender your ADSs and
withdraw the shares. However, you may not know about the meeting enough in advance to withdraw the shares. In any event, the depositary
will not exercise any discretion in voting deposited securities and it will only vote or attempt to vote as instructed.
We
cannot assure you that you will receive the voting materials in time to ensure that you can instruct the depositary to vote your shares.
In addition, the depositary and its agents are not responsible for failing to carry out voting instructions or for the manner of carrying
out voting instructions. This means that you may not be able to exercise voting rights and there may be nothing you can do if your
shares are not voted as you requested.
In
order to give you a reasonable opportunity to instruct the depositary as to the exercise of voting rights relating to Deposited Securities,
if we request the depositary to act, we agree to give the depositary notice of any such meeting and details concerning the matters to
be voted upon at least 30 days in advance of the meeting date.
Fees
and Expenses
Persons
depositing or withdrawing shares or ADS holders must pay: |
For: |
$5.00
(or less) per 100 ADSs (or portion of 100 ADSs). |
Issuance
of ADSs, including issuances resulting from a distribution of shares or rights or other property.
Cancellation
of ADSs for the purpose of withdrawal, including if the deposit agreement terminates. |
$0.05
(or less) per ADS. |
Any
cash distribution to ADS holders. |
A
fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited
for issuance of ADSs. |
Distribution
of securities distributed to holders of deposited securities which are distributed by the depositary to ADS holders. |
$0.05
(or less) per ADSs per calendar year. |
Depositary
services. |
Registration
or transfer fees. |
Transfer
and registration of shares on our share register to or from the name of the depositary or its agent when you deposit or withdraw
shares. |
Expenses
of the depositary. |
Cable,
telex and facsimile transmissions (when expressly provided in the deposit agreement).
Converting
foreign currency to U.S. dollars. |
Taxes
and other governmental charges the depositary or the custodian have to pay on any ADS or share underlying an ADS, for example, stock
transfer taxes, stamp duty or withholding taxes. |
As
necessary. |
Any
charges incurred by the depositary or its agents for servicing the deposited securities. |
As
necessary. |
The
depositary collects its fees for delivery and surrender of ADSs directly from investors depositing shares or surrendering ADSs for the
purpose of withdrawal or from intermediaries acting for them. The depositary collects fees for making distributions to investors by deducting
those fees from the amounts distributed or by selling a portion of distributable property to pay the fees. The depositary may collect
its annual fee for depositary services by deduction from cash distributions or by directly billing investors or by charging the book-entry
system accounts of participants acting for them. The depositary may collect any of its fees by deduction from any cash distribution payable
(or by selling a portion of securities or other property distributable) to ADS holders that are obligated to pay those fees. The depositary
may generally refuse to provide fee-attracting services until its fees for those services are paid.
From
time to time, the depositary may make payments to us to reimburse us for costs and expenses generally arising out of establishment and
maintenance of the ADS program, waive fees and expenses for services provided to us by the depositary or share revenue from the fees
collected from ADS holders. In performing its duties under the deposit agreement, the depositary may use brokers, dealers, foreign currency
dealers or other service providers that are owned by or affiliated with the depositary and that may earn or share fees, spreads or commissions.
The
depositary may convert currency itself or through any of its affiliates and, in those cases, acts as principal for its own account and
not as agent, advisor, broker or fiduciary on behalf of any other person and earns revenue, including, without limitation, transaction
spreads, that it will retain for its own account. The revenue is based on, among other things, the difference between the exchange rate
assigned to the currency conversion made under the deposit agreement and the rate that the depositary or its affiliate receives when
buying or selling foreign currency for its own account. The depositary makes no representation that the exchange rate used or obtained
in any currency conversion under the deposit agreement will be the most favorable rate that could be obtained at the time or that the
method by which that rate will be determined will be the most favorable to ADS holders, subject to the depositary’s obligations
under the deposit agreement. The methodology used to determine exchange rates used in currency conversions is available upon request.
Payment
of Taxes
You
will be responsible for any taxes or other governmental charges payable on your ADSs or on the deposited securities represented by any
of your ADSs. The depositary may refuse to register any transfer of your ADSs or allow you to withdraw the deposited securities represented
by your ADSs until those taxes or other charges are paid. It may apply payments owed to you or sell deposited securities represented
by your ADS to pay any taxes owed and you will remain liable for any deficiency. If the depositary sells deposited securities, it will,
if appropriate, reduce the number of ADSs to reflect the sale and pay to ADS holders any proceeds, or send to ADS holders any property,
remaining after it has paid the taxes.
Tender
and Exchange Offers; Redemption, Replacement or Cancellation of Deposited Securities
The
depositary will not tender deposited securities in any voluntary tender or exchange offer unless instructed to do by an ADS holder surrendering
ADSs and subject to any conditions or procedures the depositary may establish.
If
deposited securities are redeemed for cash in a transaction that is mandatory for the depositary as a holder of deposited securities,
the depositary will call for surrender of a corresponding number of ADSs and distribute the net redemption money to the holders of called
ADSs upon surrender of those ADSs.
If
there is any change in the deposited securities such as a sub-division, combination or other reclassification, or any merger, consolidation,
recapitalization or reorganization affecting the issuer of deposited securities in which the depositary receives new securities in exchange
for or in lieu of the old deposited securities, the depositary will hold those replacement securities as deposited securities under the
deposit agreement. However, if the depositary decides it would not be lawful and practical to hold the replacement securities because
those securities could not be distributed to ADS holders or for any other reason, the depositary may instead sell the replacement securities
and distribute the net proceeds upon surrender of the ADSs.
If
there is a replacement of the deposited securities and the depositary will continue to hold the replacement securities, the depositary
may distribute new ADSs representing the new deposited securities or ask you to surrender your outstanding ADRs in exchange for new ADRs
identifying the new deposited securities.
If
there are no deposited securities underlying ADSs, including if the deposited securities are cancelled, or if the deposited securities
underlying ADSs have become apparently worthless, the depositary may call for surrender or of those ADSs or cancel those ADSs upon notice
to the ADS holders.
Amendment
and Termination
How
may the deposit agreement be amended?
We
may agree with the depositary to amend the deposit agreement and the ADRs without your consent for any reason. If an amendment adds or
increases fees or charges, except for taxes and other governmental charges or expenses of the depositary for registration fees, facsimile
costs, delivery charges or similar items, or prejudices a substantial right of ADS holders, it will not become effective for outstanding
ADSs until 30 days after the depositary notifies ADS holders of the amendment. At the time an amendment becomes effective, you are
considered, by continuing to hold your ADSs, to agree to the amendment and to be bound by the ADRs and the deposit agreement as amended.
How
may the deposit agreement be terminated?
The
depositary will initiate termination of the deposit agreement if we instruct it to do so. The depositary may initiate termination of
the deposit agreement if
|
● |
60
days have passed since the depositary told us it wants to resign but a successor depositary has not been appointed and accepted its
appointment; |
|
● |
we
delist our shares from an exchange on which they were listed and do not list the shares on another exchange; |
|
● |
we
appear to be insolvent or enter insolvency proceedings |
|
● |
all
or substantially all the value of the deposited securities has been distributed either in cash or in the form of securities; |
|
● |
there
are no deposited securities underlying the ADSs or the underlying deposited securities have become apparently worthless; or |
|
● |
there
has been a replacement of deposited securities. |
If
the deposit agreement will terminate, the depositary will notify ADS holders at least 90 days before the termination date. At any time
after the termination date, the depositary may sell the deposited securities. After that, the depositary will hold the money it received
on the sale, as well as any other cash it is holding under the deposit agreement, unsegregated and without liability for interest, for
the pro rata benefit of the ADS holders that have not surrendered their ADSs. Normally, the depositary will sell as soon as practicable
after the termination date.
After
the termination date and before the depositary sells, ADS holders can still surrender their ADSs and receive delivery of deposited securities,
except that the depositary may refuse to accept a surrender for the purpose of withdrawing deposited securities or reverse previously
accepted surrenders of that kind if it would interfere with the selling process. The depositary may refuse to accept a surrender for
the purpose of withdrawing sale proceeds until all the deposited securities have been sold. The depositary will continue to collect distributions
on deposited securities, but, after the termination date, the depositary is not required to register any transfer of ADSs or distribute
any dividends or other distributions on deposited securities to the ADSs holder (until they surrender their ADSs) or give any notices
or perform any other duties under the deposit agreement except as described in this paragraph.
Limitations
on Obligations and Liability
Limits
on our Obligations and the Obligations of the Depositary; Limits on Liability to Holders of ADSs
The
deposit agreement expressly limits our obligations and the obligations of the depositary. It also limits our liability and the liability
of the depositary. We and the depositary:
|
● |
are
only obligated to take the actions specifically set forth in the deposit agreement without negligence or bad faith, and the depositary
will not be a fiduciary or have any fiduciary duty to holders of ADSs; |
|
● |
are
not liable if we are or it is prevented or delayed by law or by events or circumstances beyond our or its ability to prevent or counteract
with reasonable care or effort from performing our or its obligations under the deposit agreement; |
|
● |
are
not liable if we or it exercises discretion permitted under the deposit agreement; |
|
● |
are
not liable for the inability of any holder of ADSs to benefit from any distribution on deposited securities that is not made available
to holders of ADSs under the terms of the deposit agreement, or for any special, consequential or punitive damages for any breach
of the terms of the deposit agreement, or for any; |
|
● |
have
no obligation to become involved in a lawsuit or other proceeding related to the ADSs or the deposit agreement on your behalf or
on behalf of any other person; |
|
● |
may
rely upon any documents we believe or it believes in good faith to be genuine and to have been signed or presented by the proper
person; |
|
● |
are
not liable for the acts or omissions of any securities depository, clearing agency or settlement system; and |
|
● |
the
depositary has no duty to make any determination or provide any information as to our tax status, or any liability for any tax consequences
that may be incurred by ADS holders as a result of owning or holding ADSs or be liable for the inability or failure of an ADS holder
to obtain the benefit of a foreign tax credit, reduced rate of withholding or refund of amounts withheld in respect of tax or any
other tax benefit. |
In
the deposit agreement, we and the depositary agree to indemnify each other under certain circumstances.
Requirements
for Depositary Actions
Before
the depositary will deliver or register a transfer of ADSs, make a distribution on ADSs, or permit withdrawal of shares, the depositary
may require:
|
● |
payment
of stock transfer or other taxes or other governmental charges and transfer or registration fees charged by third parties for the
transfer of any shares or other deposited securities; |
|
● |
satisfactory
proof of the identity and genuineness of any signature or other information it deems necessary; and |
|
● |
compliance
with regulations it may establish, from time to time, consistent with the deposit agreement, including presentation of transfer documents. |
The
depositary may refuse to deliver ADSs or register transfers of ADSs when the transfer books of the depositary or our transfer books are
closed or at any time if the depositary or we think it advisable to do so.
Your
Right to Receive the Shares Underlying your ADSs
ADS
holders have the right to cancel their ADSs and withdraw the underlying shares at any time except:
|
● |
when
temporary delays arise because: (i) the depositary has closed its transfer books or we have closed our transfer books; (ii) the transfer
of shares is blocked to permit voting at a shareholders’ meeting; or (iii) we are paying a dividend on our shares; |
|
● |
when
you owe money to pay fees, taxes and similar charges; or |
|
● |
when
it is necessary to prohibit withdrawals in order to comply with any laws or governmental regulations that apply to ADSs or to the
withdrawal of shares or other deposited securities. |
This
right of withdrawal may not be limited by any other provision of the deposit agreement.
Pre-release
of ADSs
The
deposit agreement permits the depositary to deliver ADSs before deposit of the underlying shares. This is called a pre-release of the
ADSs. The depositary may also deliver shares upon cancellation of pre-released ADSs (even if the ADSs are canceled before the pre-release
transaction has been closed out). A pre-release is closed out as soon as the underlying shares are delivered to the depositary. The depositary
may receive ADSs instead of shares to close out a pre-release. The depositary may pre-release ADSs only under the following conditions:
(1) before or at the time of the pre-release, the person to whom the pre-release is being made represents to the depositary in writing
that it or its customer owns the shares or ADSs to be deposited; (2) the pre-release is fully collateralized with cash or other collateral
that the depositary considers appropriate; and (3) the depositary must be able to close out the pre-release on not more than five business
days’ notice. In addition, the depositary will limit the number of ADSs that may be outstanding at any time as a result of pre-release,
although the depositary may disregard the limit from time to time if it thinks it is appropriate to do so.
Direct
Registration System
In
the deposit agreement, all parties to the deposit agreement acknowledge that the Direct Registration System, or DRS, and Profile Modification
System, or Profile, will apply to the ADSs. DRS is a system administered by DTC that facilitates interchange between registered holding
of uncertificated ADSs and holding of security entitlements in ADSs through DTC and a DTC participant. Profile is feature of DRS that
allows a DTC participant, claiming to act on behalf of a registered holder of uncertificated ADSs, to direct the depositary to register
a transfer of those ADSs to DTC or its nominee and to deliver those ADSs to the DTC account of that DTC participant without receipt by
the depositary of prior authorization from the ADS holder to register that transfer.
In
connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties to the deposit agreement
understand that the depositary will not determine whether the DTC participant that is claiming to be acting on behalf of an ADS holder
in requesting registration of transfer and delivery as described in the paragraph above has the actual authority to act on behalf of
the ADS holder (notwithstanding any requirements under the Uniform Commercial Code). In the deposit agreement, the parties agree that
the depositary’s reliance on and compliance with instructions received by the depositary through the DRS/Profile System and in
accordance with the deposit agreement will not constitute negligence or bad faith on the part of the depositary.
Shareholder
communications; inspection of register of holders of ADSs
The
depositary will make available for your inspection at its office all communications that it receives from us as a holder of deposited
securities that we make generally available to holders of deposited securities. The depositary will send you copies of those communications
or otherwise make those communications available to you if we ask it to. You have a right to inspect the register of holders of ADSs,
but not for the purpose of contacting those holders about a matter unrelated to our business or the ADSs.
Jury
Trial Waiver
The
deposit agreement provides that, to the extent permitted by law, ADS holders waive the right to a jury trial of any claim they may have
against us or the depositary arising out of or relating to our shares, the ADSs or the deposit agreement, including any claim under the
U.S. federal securities laws. If we or the depositary opposed a jury trial demand based on the waiver, the court would determine whether
the waiver was enforceable in the facts and circumstances of that case in accordance with applicable case law.
PLAN
OF DISTRIBUTION
We
may sell the securities being offered hereby in one or more of the following methods from time to time:
|
● |
a
block trade (which may involve crosses) in which the broker or dealer so engaged will attempt to sell the securities as agent but
may position and resell a portion of the block as principal to facilitate the transaction; |
|
● |
purchases
by a broker or dealer as principal and resale by such broker or dealer for its own account pursuant to this prospectus; |
|
● |
exchange
distributions and/or secondary distributions; |
|
● |
ordinary
brokerage transactions and transactions in which the broker solicits purchasers; |
|
● |
to
one or more underwriters for resale to the public or to investors; |
|
● |
in
an “at the market offering,” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker
or into an existing trading market, on an exchange or otherwise; |
|
● |
transactions
not involving market makers or established trading markets, including direct sales or privately negotiated transactions; or |
|
● |
through
a combination of these methods of sale. |
The
securities that we distribute by any of these methods may be sold, in one or more transactions, at:
|
● |
a
fixed price or prices, which may be changed; |
|
● |
market
prices prevailing at the time of sale; |
|
● |
prices
related to prevailing market prices; or |
We
will set forth in a prospectus supplement the terms of the offering of securities, including:
|
● |
the
name or names of any agents, dealers or underwriters; |
|
● |
the
purchase price of the securities being offered and the proceeds we will receive from the sale; |
|
● |
any
over-allotment options under which underwriters may purchase additional securities from us; |
|
● |
any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; |
|
● |
the
public offering price; |
|
● |
any
discounts or concessions allowed or re-allowed or paid to dealers; and |
|
● |
any
securities exchanges or markets on which such securities may be listed. |
If
underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to
time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations
of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement.
We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without
a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus
supplement, other than securities covered by any over-allotment option. Any public offering price and any discounts or concessions allowed
or re-allowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship. We
will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We
may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale
of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement
states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We
may also sell securities directly to one or more purchasers without using underwriters or agents.
Underwriters,
dealers and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act and any
discounts or commissions they receive from us and any profit on their resale of the securities may be treated as underwriting discounts
and commissions under the Securities Act. We will identify in the applicable prospectus supplement any underwriters, dealers or agents
and will describe their compensation. We may have agreements with the underwriters, dealers and agents to indemnify them against specified
civil liabilities, including liabilities under the Securities Act. Underwriters, dealers and agents may engage in transactions with or
perform services for us in the ordinary course of their businesses.
In
connection with an offering, an underwriter may purchase and sell securities in the open market. These transactions may include short
sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters
of a greater number of securities than they are required to purchase in the offering.
Accordingly,
to cover these short sales positions or to otherwise stabilize or maintain the price of the securities, the underwriters may bid for
or purchase securities in the open market and may impose penalty bids. If penalty bids are imposed, selling concessions allowed to syndicate
members or other broker-dealers participating in the offering are reclaimed if securities previously distributed in the offering are
repurchased, whether in connection with stabilization transactions or otherwise. The effect of these transactions may be to stabilize
or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. The impositions
of a penalty bid may also affect the price of the securities to the extent that it discourages resale of the securities. The magnitude
or effect of any stabilization or other transactions is uncertain. These transactions may be effected on The Nasdaq Capital Market or
otherwise and, if commenced, may be discontinued at any time.
EXPENSES
We
are paying all of the expenses of the registration of our securities under the Securities Act, including, to the extent applicable, registration
and filing fees, printing and duplication expenses, administrative expenses, accounting fees and the legal fees of our counsel. We estimate
these expenses to be approximately $35,000 which at the present time include the following categories of expenses:
SEC
registration fee | |
$ | 7,380 | |
Legal
fees and expenses | |
$ | 10,000 | |
Accounting
fees and expenses | |
$ | 15,000 | |
Miscellaneous
expenses | |
$ | 2,620 | |
| |
| | |
Total | |
$ | 35,000 | |
In
addition, we anticipate incurring additional expenses in the future in connection with the offering of our securities pursuant to this
prospectus. Any such additional expenses will be disclosed in a prospectus supplement.
LEGAL
MATTERS
Certain
legal matters concerning this prospectus will be passed upon for us by Sullivan & Worcester LLP, New York, New York. Certain legal
matters with respect to the validity of the Ordinary Shares represented by the ADSs offered in this prospectus will be passed upon for
us by Lipa Meir & Co, Tel Aviv, Israel.
EXPERTS
The
consolidated financial statements of Foresight Autonomous Holdings Ltd. as of December 31, 2022 and 2021, and for each of the years in
the three-year period ended on December 31, 2022, incorporated by reference in this Prospectus, have been audited by Brightman
Almagor Zohar & Co., an independent registered public accounting firm in the Deloitte Global Network, as stated in its report. Such
consolidated financial statements are incorporated by reference in reliance upon the report of such firm given their
authority as experts in accounting and audit.
WHERE
YOU CAN FIND MORE INFORMATION
AND INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
We
are an Israeli company and are a “foreign private issuer” as defined in Rule 3b-4 under the Securities Exchange Act of 1934,
as amended, or the Exchange Act. As a foreign private issuer, we are exempt from the rules under the Exchange Act related to the furnishing
and content of proxy statements, and our officers, directors and principal shareholders are exempt from the reporting and short-swing
profit recovery provisions contained in Section 16 of the Exchange Act.
In
addition, we are not required under the Exchange Act to file annual, quarterly and current reports and financial statements with the
SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act. However, we file with the
SEC, within 120 days after the end of each fiscal year, or such applicable time as required by the SEC, an annual report on Form 20-F
containing financial statements audited by an independent registered public accounting firm, and submit to the SEC, on a Form 6-K, unaudited
quarterly financial information.
In
addition, since our Ordinary Shares were traded on the TASE prior to our listing on Nasdaq, until June 15, 2017, we have filed Hebrew
language periodic and immediate reports with, and furnished information to, the TASE and the Israel Securities Authority, or the ISA,
as required under Chapter Six of the Israel Securities Law, 5728-1968, or the Securities Law. Copies of our filings with the ISA can
be retrieved electronically through the MAGNA distribution site of the ISA (www.magna.isa.gov.il) and the TASE website (www.maya.tase.co.il).
We
maintain a corporate website at www.foresightauto.com. Information contained on, or that can be accessed through, our website and other
websites listed in this prospectus do not constitute a part of this prospectus. We have included these website addresses in this prospectus
solely as inactive textual references.
The
SEC maintains a web site that contains information we file electronically with the SEC, which you can access over the Internet at http://www.sec.gov.
This
prospectus is part of a registration statement on Form F-3 filed by us with the SEC under the Securities Act. As permitted by the rules
and regulations of the SEC, this prospectus does not contain all the information set forth in the registration statement and the exhibits
thereto filed with the SEC. For further information with respect to us and the ADSs offered hereby, you should refer to the complete
registration statement on Form F-3, which may be obtained from the locations described above. Statements contained in this prospectus
or in any prospectus supplement about the contents of any contract or other document are not necessarily complete. If we have filed any
contract or other document as an exhibit to the registration statement or any other document incorporated by reference in the registration
statement, you should read the exhibit for a more complete understanding of the document or matter involved. Each statement regarding
a contract or other document is qualified in its entirety by reference to the actual document.
The
following documents filed with or furnished to the SEC by us are incorporated by reference in this prospectus:
|
● |
the
Company’s financial results (other than non-GAAP financial results) included in the registrant’s Reports on Form
6-K furnished to the Commission on May 31, 2023; |
|
|
|
|
● |
the
Company’s financial results (other than non-GAAP financial results) included in the registrant’s Reports on Form
6-K furnished to the Commission on August 23, 2023; |
|
|
|
|
● |
the
Company’s financial results (other than non-GAAP financial results) included in the registrant’s Reports on Form
6-K furnished to the Commission on November 22, 2023; |
|
● |
the
Company’s report of foreign private issuer on Form 6-K furnished to the SEC on March
30, 2023 (with respect to the first two paragraphs, the sections titled “Fourth Quarter Corporate Highlights,”
“Fourth Quarter 2022 Financial Results,” “Full Year 2022 Financial Results,” “Balance Sheet Highlights,”
“Use of Non-GAAP Financial Results,” and “Forward-Looking Statements,” and the financial statements in the
press release attached as Exhibit 99.1 to the Form 6-K), April
6, 2023, May
8, 2023, May
31, 2023 (with respect to the first two paragraphs, the sections titled “First Quarter Corporate Highlights,” “First
Quarter 2023 Financial Results,” “Balance Sheet Highlights,” “Use of Non-GAAP Financial Results,” “About
Foresight,” and “Forward-Looking Statements” in the press release attached as Exhibit 99.1 to the Form 6-K), June
9, 2023, June
13, 2023, (with respect to the first three paragraphs in the press release attached as Exhibit 99.1 to the Form 6-K), June
20, 2023, July
17, 2023 (with respect to the first three paragraphs and the section entitled “Forward-Looking Statements” in
the press release attached as Exhibit 99.1 to the Form 6-K), July
27, 2023, August
11, 2023, August
14, 2023, August
23, 2023 (with respect to the first two paragraphs, the sections titled “Second Quarter Corporate Highlights,”
“Second Quarter 2023 Financial Results,” “First Half 2023 Financial Results,” “Balance Sheet Highlights,”
and “Forward-Looking Statements,” and the GAAP financial statements in the press release attached as Exhibit 99.1 to
the Form 6-K), August
31, 2023 (with respect to the first three paragraphs and the section titled “Forward-Looking Statements” in the press
release attached as Exhibit 99.1 to the Form 6-K) September
22, 2023, October
18, 2023 (with respect to the first, third, and fourth paragraphs and the section titled “Forward-Looking Statements”
in the press release attached as Exhibit 99.1 to the Form 6-K), October
25, 2023, November
1, 2023, November
7, 2023, November
20, 2023 (with respect to the first two paragraphs and the paragraph titled “Forward-Looking Statements” in
the press release attached as Exhibit 99.1 to the Form 6-K), December
8, 2023, January
9, 2024, January 24, 2024 (with respect to the first, third and fourth paragraphs),
and January 25, 2024 (with respect to the first, second, and fourth paragraphs); |
|
● |
the
Company’s Annual Report on Form
20-F for the fiscal year ended December 31, 2022, filed with the SEC on March 30, 2023; and |
|
● |
the
description of the Company’s Ordinary Shares and ADSs contained in the Company’s registration statement on Form
20-F filed with the SEC pursuant to the Exchange Act on June 1, 2017 (File No. 001-38094), including any amendment or report
filed which updates such description. |
All
subsequent Annual Reports filed by us pursuant to the Exchange Act on Form 20-F prior to the termination of the offering shall be deemed
to be incorporated by reference to this prospectus and to be a part hereof from the date of filing of such documents. We may also incorporate
any Form 6-K subsequently submitted by us to the SEC prior to the termination of the offering by identifying in such Forms 6-K that they
are being incorporated by reference herein, and any Forms 6-K so identified shall be deemed to be incorporated by reference in this prospectus
and to be a part hereof from the date of submission of such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a
statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
The
information we incorporate by reference is an important part of this prospectus, and later information that we file with the SEC will
automatically update and supersede the information contained in this prospectus.
We
will provide you without charge, upon your written or oral request, a copy of any of the documents incorporated by reference in this
prospectus, other than exhibits to such documents which are not specifically incorporated by reference into such documents. Please direct
your written or telephone requests to us at Foresight Autonomous Holdings Ltd., 7 Golda Meir St., Ness Ziona 7414001, Israel. Attention:
Eliyahu Yoresh, Chief Financial Officer, telephone number: +972-077-9709030.
ENFORCEABILITY
OF CIVIL LIABILITIES
We
are incorporated under the laws of the State of Israel. Service of process upon us and upon our directors and officers, substantially
all of whom reside outside of the United States, may be difficult to obtain within the United States. Furthermore, because substantially
all of our assets and substantially all of our directors and officers are located outside of the United States, any judgment obtained
in the United States against us or any of our directors and officers may not be collectible within the United States.
We
have been informed by our legal counsel in Israel, Lipa Meir & Co, that it may be difficult to assert U.S. securities law claims
in original actions instituted in Israel. Israeli courts may refuse to hear a claim based on a violation of U.S. securities laws because
Israel is not the most appropriate forum to bring such a claim. In addition, even if an Israeli court agrees to hear a claim, it may
determine that Israeli law and not U.S. law is applicable to the claim. If U.S. law is found to be applicable, the content of applicable
U.S. law must be proved as a fact which can be a time-consuming and costly process. Certain matters of procedure will also be governed
by Israeli law.
Subject
to specified time limitations and legal procedures, an Israeli court may enforce a United States judgment in a civil matter, which, subject
to certain exceptions, is non-appealable, including judgments based upon the civil liability provisions of the Securities Act and the
Exchange Act and including a monetary or compensatory judgment in a non-civil matter, provided that among other things:
|
● |
the
judgment was rendered by a court which was, according to the foreign country’s laws and the rules of private international
law currently prevailing in Israel, competent to render it; |
|
● |
the
judgment is no longer appealable; |
|
● |
the
judgment is enforceable according to the rules relating to the enforceability of judgments in Israel and the substance of the judgment
is not contrary to public policy in Israel; and |
|
● |
the
judgment is enforceable according to the law of the foreign state in which it was given. |
A
foreign judgment will not be declared enforceable by Israeli courts if it was given in a state, the laws of which do not provide for
the enforcement of judgments of Israeli courts (subject to exceptional cases) or if its enforcement is likely to impair the sovereignty
or security of Israel. An Israeli court also will not declare a foreign judgment enforceable if it is proved to the Israeli court that:
|
● |
the
judgment was obtained by fraud; |
|
● |
no
adequate service of process has been effected and the defendant has not had a reasonable opportunity to be heard and to present his
or her evidence; |
|
● |
the
judgment is in conflict with another judgment that was given in the same matter between the same parties and which is still valid;
or |
|
● |
at
the time the action was brought to the foreign court a claim in the same matter and between the same parties was pending before a
court or tribunal in Israel. |
If
a foreign judgment is enforced by an Israeli court, it generally will be payable in Israeli currency, which can then be converted into
non-Israeli currency and transferred out of Israel. The usual practice in an action before an Israeli court to recover an amount in a
non-Israeli currency is for the Israeli court to issue a judgment for the equivalent amount in Israeli currency at the rate of exchange
in force on the date of the judgment, but the judgment debtor may make payment in foreign currency. Pending collection, the amount of
the judgment of an Israeli court stated in Israeli currency ordinarily will be linked to the Israeli consumer price index plus interest
at the annual statutory rate set by Israeli regulations prevailing at the time. Judgment creditors must bear the risk of unfavorable
exchange rates.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
8. Indemnification of Directors and Officers
Indemnification
The
Companies Law, provides that a company may indemnify an office holder against the following liabilities and expenses incurred for acts
performed by him or her as an office holder, either pursuant to an undertaking made in advance of an event or following an event, provided
its articles of association include a provision authorizing such indemnification:
|
● |
a
financial liability imposed on him or her in favor of another person by any judgment concerning an act performed in his or her capacity
as an office holder, 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 foreseen events and amount or criteria; |
|
● |
reasonable
litigation expenses, including attorneys’ fees, expended by the office holder (a) 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 (1) no indictment
(as defined in the Companies Law) was filed against such office holder as a result of such investigation or proceeding; and (2) no
financial liability as a substitute for the criminal proceeding (as defined in the Companies Law) was imposed upon him or her 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 (b) in connection with a monetary sanction; |
|
● |
reasonable
litigation expenses, including attorneys’ fees, expended by the office holder or imposed on him or her by a court: (1) in proceedings
that the company institutes, or that another person institutes on the company’s behalf, against him or her; (2) in a criminal
proceedings of which he or she was acquitted; or (3) as a result of a conviction for a crime that does not require proof of criminal
intent; and |
|
● |
expenses
incurred by an office holder in connection with an Administrative Procedure under the Israel Securities Law, 1968, or Securities
Law, including reasonable litigation expenses and reasonable attorneys’ fees. An “Administrative Procedure” is
defined as a procedure pursuant to chapters H3 (Monetary Sanction by the Israeli Securities Authority), H4 (Administrative Enforcement
Procedures of the Administrative Enforcement Committee) or I1 (Arrangement to prevent Procedures or Interruption of procedures subject
to conditions) to the Securities Law. |
Our
amended and restated articles of association allow us to indemnify our office holders up to a certain amount. The Companies Law also
permits a company to undertake in advance to indemnify an office holder, provided that if such indemnification relates to financial liability
imposed on him or her, as described above, then the undertaking should be limited and shall detail the following foreseen events and
amount or criterion:
|
● |
to
events that in the opinion of the board of directors can be foreseen based on the Company’s activities at the time that the
undertaking to indemnify is made; and |
|
● |
in
amount or criterion determined by the board of directors, at the time of the giving of such
undertaking to indemnify, to be reasonable under the circumstances.
|
Exculpation
Under
the Companies Law, an Israeli company may not exculpate an office holder from liability for a breach of his or her duty of loyalty, but
may exculpate in advance an office holder from his or her liability to the company, in whole or in part, for damages caused to the company
as a result of a breach of his or her duty of care (other than in relation to distributions), but only if a provision authorizing such
exculpation is included in its articles of association.
Our
amended and restated articles of association provide that we may exculpate, in whole or in part, any office holder from liability to
us for damages caused to the Company as a result of a breach of his or her duty of care, but prohibit an exculpation from liability arising
from a Company’s transaction and/or decision in which our controlling shareholder or officer has a personal interest.
Limitations
The
Companies Law provides that the Company may not exculpate or indemnify an office holder nor enter into an insurance contract that would
provide coverage for any liability incurred as a result of any of the following: (1) a breach by the office holder of his or her duty
of loyalty unless (in the case of indemnity or insurance only, but not exculpation) the office holder acted in good faith and had a reasonable
basis to believe that the act would not prejudice us; (2) a breach by the office holder of his or her duty of care if the breach was
carried out intentionally or recklessly (as opposed to merely negligently); (3) any act or omission committed with the intent to derive
an illegal personal benefit; or (4) any fine, monetary sanction, penalty or forfeit levied against the office holder.
Under
the Companies Law, exculpation, indemnification and insurance of office holders in a public company must be approved by the compensation
committee and the board of directors and, with respect to certain office holders or under certain circumstances, also by the shareholders.
Our
amended and restated articles of association permit us to exculpate (subject to the aforesaid limitation), indemnify and insure our office
holders to the fullest extent permitted or to be permitted by the Companies Law.
We
have entered into indemnification and exculpation agreements with all of our directors and with all members of our senior management.
Each such agreement provides the office holder with indemnification permitted under applicable law and up to a certain amount, and to
the extent that these liabilities are not covered by directors and officers insurance. In addition, each such agreement exculpates and
releases our office holders from any and all liability to us related to any breach by them of their duty of care to us to the fullest
extent permitted by law, subject to the aforesaid limitations.
Item
9. Exhibits
Exhibit
Number |
|
Description |
1.1* |
|
Form
of underwriting agreement. |
|
|
|
3.1 |
|
Articles of Association of Foresight Autonomous Holdings Ltd. (unofficial English translation from Hebrew original), filed as part of Exhibit 99.1.1 to Form 6-K filed on August 16, 2019, and incorporated herein by reference. |
|
|
|
4.1 |
|
Form of Deposit Agreement among Foresight Autonomous Holdings Ltd., The Bank of New York Mellon as Depositary, and owners and holders from time to time of ADSs issued thereunder, including the Form of American Depositary Shares, filed as Exhibit 2.1 to Form 20-F (File No. 001-38094) filed on May 11, 2017, and incorporated herein by reference. |
|
|
|
5.1** |
|
Opinion of Lipa Meir & Co. |
|
|
|
23.1** |
|
Consent
of Brightman Almagor Zohar & Co., a Firm in the Deloitte Global Network, independent registered public accounting firm. |
|
|
|
23.2** |
|
Consent of Lipa Meir & Co (included in Exhibit 5.1). |
|
|
|
24.1
** |
|
Power
of Attorney (included in the signature page of this registration statement). |
|
|
|
107
** |
|
Filing
Fee Table. |
* |
To
be filed, if applicable, by post-effective amendment or incorporated by reference in connection with the offering of any ADSs, as
appropriate. |
Item
10. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) 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;
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii)
of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act
that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F
at the start of any delayed offering or throughout a continuous offering; provided, however, that a post-effective amendment need not
be filed to include financial statements and information required by Section 10(a)(3) of the Act or Rule 3-19 if such financial statements
and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act that are incorporated by reference in this registration statement.
(5)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(i)
If the registrant is relying on Rule 430B:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date; or
(ii)
If the registrant is subject to Rule 430C, 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 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 prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as
to a 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.
(6)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424; (ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant; (iii) The portion of any other free writing prospectus relating to the offering containing material
information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and (iv) Any other
communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question
of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunder
duly authorized, in the city of Ness Ziona, State of Israel, on January 26, 2024.
|
FORESIGHT
AUTONOMOUS HOLDINGS LTD. |
|
|
|
|
By: |
/s/
Haim Siboni |
|
|
Haim
Siboni |
|
|
Chief
Executive Officer |
POWER
OF ATTORNEY
We,
the undersigned directors and/or officers of Foresight Autonomous Holdings Ltd., hereby severally constitute and appoint Haim Siboni
and Eliyahu Yoresh, and each of them singly, our true and lawful attorneys, with full power to any of them, and to each of them singly,
to sign for us and in our names in the capacities indicated below the registration statement on Form F-3 filed herewith, and any and
all pre-effective and post-effective amendments to said registration statement, and any registration statement filed pursuant to Rule
462(b) under the Securities Act, as amended, in connection with the said registration under the Securities Act, as amended, and to file
or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the SEC, granting unto said
attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done
in connection therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby ratifying and confirming
all that said attorneys, and each of them, shall do or cause to be done by virtue of this Power of Attorney.
Pursuant
to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities
and on the dates indicated:
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Haim Siboni |
|
Chief
Executive Officer and Chairman of the Board of Directors |
|
January
26, 2024 |
Haim
Siboni |
|
(principal
executive officer) |
|
|
|
|
|
|
|
/s/
Eliyahu Yoresh |
|
Chief
Financial Officer |
|
January
26, 2024 |
Eliyahu
Yoresh |
|
(principal
financial officer and principal accounting officer) |
|
|
|
|
|
|
|
/s/
Moshe Scherf |
|
Director |
|
January
26, 2024 |
Moshe
Scherf |
|
|
|
|
|
|
|
|
|
/s/
Ehud Aharoni |
|
Director |
|
January
26, 2024 |
Ehud
Aharoni |
|
|
|
|
|
|
|
|
|
/s/
Daniel Avidan |
|
Director |
|
January
26, 2024 |
Daniel
Avidan |
|
|
|
|
|
|
|
|
|
/s/
Zeev Levenberg |
|
Director |
|
January
26, 2024 |
Zeev
Levenberg |
|
|
|
|
|
|
|
|
|
/s/
Vered Raz-Avayo |
|
Director |
|
January
26, 2024 |
Vered
Raz-Avayo |
|
|
|
|
SIGNATURE
OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant
to the Securities Act of 1933, as amended, the undersigned, Puglisi & Associates duly authorized representative in the United States
of Foresight Autonomous Holdings Ltd., has signed this registration statement on January 26, 2024.
|
PUGLISI
& ASSOCIATES |
|
|
|
/s/
Donald J. Puglisi |
|
Donald
J. Puglisi
Managing
Director |
Exhibit
5.1
January
26, 2024
Foresight
Autonomous Holdings Ltd.
7
Golda Meir St.
Ness
Ziona 7403650
Israel
Re:
Registration Statement on Form F-3
Ladies
and Gentlemen,
We
have acted as Israeli counsel to Foresight Autonomous Holdings Ltd., a company organized under the laws of the State of Israel (the “Company”),
in connection with a Registration Statement on Form F-3 (the “Registration Statement”) being filed by the Company,
with the Securities and Exchange Commission (the “SEC”) on or about January 26, 2024 under the Securities Act of 1933,
as amended (the “Securities Act”). The Registration Statement relates to the proposed offer and sale by the Company,
from time to time, as set forth in the prospectus contained in the Registration Statement (the “Prospectus”) and as
shall be set forth in one or more supplements to the Prospectus (each, a “Prospectus Supplement”), of up to a $50,000,000
aggregate amount of American Depositary Shares (“ADSs”), each representing thirty ordinary shares, no par value, of
the Company (“Ordinary Shares”).
In
connection herewith, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration
Statement, to which this opinion is attached as an exhibit, (ii) a copy of the articles of association of the Company as currently in
effect (the “Articles”); (iii) resolutions of the board of directors (the “Board”) of the Company
which have heretofore been approved and which relate to the Registration Statement and actions to be taken in connection therewith; and
(iv) such other corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public
officials and of officers and representatives of the Company, as we have deemed relevant and necessary as a basis for the opinions hereafter
set forth. We have also made inquiries of such officers and representatives as we have deemed relevant and necessary as a basis for the
opinions hereafter set forth.
In
such examination, we have assumed: (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity
to the originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations
and warranties contained in the corporate records, documents, certificates and instruments we have reviewed; (iv) the due execution and
delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof; and (v) the legal capacity
of all natural persons. As to any facts material to such opinion, to the extent that we did not independently establish relevant facts,
we have relied on certificates of public officials and certificates of officers or other representatives of the Company.
|
-2- |
For
the purpose of the opinions expressed below, we have assumed further that after the issuance of the ADSs or the Ordinary Shares pursuant
to the Registration Statement, the total number of issued Ordinary Shares, together with the total number of Ordinary Shares reserved
for issuance upon the exercise, exchange or conversion, as the case may be, of any exercisable, exchangeable or convertible security
then outstanding, will not exceed the total number of authorized share capital under the Company’s amended and restated articles
of association.
On
the basis of the foregoing, and in reliance thereon, we are of the opinion that, assuming (a) the taking of all necessary subsequent
corporate action to authorize and approve the issuance of any Ordinary Shares underlying the ADSs, the terms of the offering thereof
and related matters (the “Authorizing Resolutions”), (b) the effectiveness (without termination or rescindment) of
the Registration Statement, as finally amended (including any post-effective amendments), under the Securities Act, (c) the delivery
and filing of an appropriate prospectus supplement (if necessary) with respect to the offering of the ADSs in compliance with the Securities
Act and the applicable rules and regulations thereunder, (d) approval by the Board of, and entry by the Company into, and performance
by the Company under, any applicable definitive purchase, underwriting or similar agreement between the Company and any third party pursuant
to which any of the ADSs and the Ordinary Shares underlying same may be issued and sold, in a form to be filed as an exhibit to the Registration
Statement, any post-effective amendment thereto or to a Report of Foreign Private Issuer on Form 6-K (an “Underwriting Agreement”),
and (e) receipt by the Company of the consideration for the ADSs as provided for in the Authorizing Resolutions and in accordance with
the provisions of any such Underwriting Agreement, such Ordinary Shares will be validly issued, fully paid and non-assessable.
We
are members of the Israel Bar, and we express no opinion as to any matter relating to the laws of any jurisdiction other than the laws
of the State of Israel. This opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the
matters expressly stated. The opinions set forth herein are made as of the date hereof and are subject to, and may be limited by, future
changes in the factual matters set forth herein, and we undertake no duty to advise you of the same. The opinions expressed herein are
based upon the law in effect (and published or otherwise generally available) on the date hereof, and we assume no obligation to revise
or supplement these opinions should such law be changed by legislative action, judicial decision or otherwise.
You
have informed us that you intend to issue the ADSs and/or the Ordinary Shares (together, the “Securities”) from time
to time on a delayed or continuous basis, and this opinion is limited to the laws, including the rules and regulations, as in effect
on the date hereof. We understand that prior to issuing any Securities you will afford us an opportunity to review the operative documents
pursuant to which such Securities are to be issued (including the applicable Prospectus Supplement) and will file such supplement or
amendment to this opinion (if any) as we may reasonably consider necessary or appropriate.
We
hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm appearing under
the caption “Legal Matters” and “Enforceability of Civil Liabilities” in the Prospectus. We also consent to your
filing copies of this opinion as an exhibit to the Registration Statement with agencies of such states as you deem necessary in the course
of complying with the laws of such states regarding the offering and sale of the Securities. In giving such consent, we do not thereby
concede that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations
of the SEC thereunder.
|
Very
truly yours, |
|
|
|
/s/
Lipa Meir & Co |
Exhibit 23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form F-3 of our report dated March 30, 2023 relating to the
financial statements of Foresight Autonomous Holdings Ltd. (the “Company”), appearing in the Annual Report on Form 20-F of
the Company for the year ended December 31, 2022. We also consent to the reference to us under the heading “Experts” in such
Registration Statement.
/s/
Brightman Almagor Zohar & Co.
Brightman
Almagor Zohar & Co
Certified
Public Accountants
A
Firm in the Deloitte Global Network
Tel
Aviv, Israel
January
26, 2024
Exhibit
107
Calculation
of Filing Fee Tables
FORM
F-3
(Form
Type)
Foresight
Autonomous Holdings Ltd.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
| |
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 | |
Equity | |
Ordinary
Shares, no par value (1) | |
| | | |
| (2)(3 | ) | |
| (4 | ) | |
$ | 50,000,000 | | |
| 0.00014760 | | |
| 7,380.00 | | |
| | | |
| | | |
| | | |
| | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Fees
Previously Paid | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Total
Offering Amounts | | |
$ | 50,000,000 | | |
| | | |
$ | 7,380.00 | | |
| | | |
| | | |
| | | |
| | |
| |
Total
Fees Previously Paid | | |
| | | |
| | | |
$ | 0.00 | | |
| | | |
| | | |
| | | |
| | |
| |
Total
Fee Offsets | | |
| | | |
| | | |
$ | 0.00 | | |
| | | |
| | | |
| | | |
| | |
| |
Net
Fee Due | | |
| | | |
| | | |
$ | 7,380.00 | | |
| | | |
| | | |
| | | |
| | |
(1) |
The
Ordinary Shares will be represented by American Depositary Shares, or ADSs, evidenced by American Depositary Receipts, issuable upon
deposit of Ordinary Shares of Foresight Autonomous Holdings Ltd., or the Registrant, which have been registered pursuant to a separate
registration statement on Form F-6 (File No. 333-217881 and 333-252207). Each ADS represents thirty (30) Ordinary Shares. |
|
|
(2) |
There
are being registered under this registration statement such indeterminate number of ADSs as may be offered by the Registrant from
time to time at indeterminate prices, which shall have an aggregate initial offering price not to exceed $50,000,000. The registrant
is currently subject to the provisions of General Instruction I.B.5 of Form F-3, which provide that as long as the aggregate market
value of the outstanding voting and non-voting common equity of the registrant held by non-affiliates is less than $75,000,000, then
the aggregate market value of securities sold by or on our behalf of the registrant on Form F-3, during the period of 12 calendar
months immediately prior to, and including, such sale(s), is no more than one-third of the aggregate market value of the voting and
non-voting common equity of the registrant held by non-affiliates as of a date within 60 days of such sale(s). In addition, pursuant
to Rule 416 under the Securities Act of 1933, as amended, or the Securities Act, the ADSs being registered hereunder include such
indeterminate number of ADSs as may be issuable with respect to the Ordinary Shares being registered hereunder as a result of stock
splits, stock dividends or similar transactions. |
(3) |
Estimated
solely for purposes of calculating the amount of the registration fee pursuant to Rule 457(o) under the Securities Act. |
|
|
(4) |
Omitted
pursuant to Rule 457(o) under the Securities Act. |
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