exv10w23



 





Exhibit 10.23




UNDERWRITING AGREEMENT




Compiled and Signed in Tel-Aviv on 24 August, 2005




Between




TopSpin Medical, Inc.




(Hereinafter: “The Company”)




And between:




          Poalim I.B.I Underwriting & Issuances Ltd.




          Altshuller Saham Management of Underwriting & Investments Ltd.




          Rosario Capital Ltd.




          Shoher Tov Ltd.




          P.R. Capital Markets Research Ltd.




          Solomon Underwriters Ltd.




          Jerusalem Capital Markets – Underwriting & Share Issue (1994) Ltd.




          I.A.Z. Investments & Properties Ltd.




          Vered Doroth Underwriting Company (1993) Ltd.




(Together hereinafter: “The Underwriters”)




	 	 	 
	Whereas

	 	The Company is about to publish a Prospectus according to
which it shall offer the public 38,000,000 regular shares,
together with 22,800,000 option warrants (series 1) that may
be realized into regular shares (hereinafter: “Securities”);
	 
	 	 
	And Whereas:

	 	The Securities will be offered to the public, in a
composition, in a quantity, in a price, in a manner, on dates
and terms that are detailed in the Prospectus which is about
to be published in this regard (hereinafter: “The
Prospectus”);
	 
	 	 
	And Whereas:

	 	The Company states and undertakes that the Securities,
including Securities that will be subsequently derived from
realizing the negotiable Securities included in the offer
according to the Prospectus, are not and will be not be under
a lien on the time they are allocated, that no third party
privileges or claims whatsoever shall pertain to them, that
the Company has the full and exclusive right to issue and
offer the Securities to the public and that all the necessary
permits and authorizations for such












 



 


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	 	were obtained, except for the authorization by Israel Securities Authority to
publish the Prospectus and the permit of the Stock Exchange to list the
Securities for trading;
	 
	 	 
	And Whereas

	 	The Securities will be offered to the public in – 38,000 units
(hereinafter: “The Units”), where each of them includes 1,000
regular shares and – 600 option warrants (series 1), in a
tender for a unit price that shall be no less then NIS 950
(hereinafter: “The Minimal Price per Unit”);
	 
	 	 
	And Whereas

	 	Institutional investors have pledged in a pre-undertaking, as
specified in the Prospectus, to order 14,739 units from the
units offered to the public (hereinafter: “The Units of the
Institutional investors”);
	 
	 	 
	And Whereas

	 	The Underwriters agreed to secure the purchase of 10,433 units
from the units offered to the public, which are the total of
the units on offer except for units of whom there is a pledge
by the Institutional investors and except for units of whom
there is a purchase pledge as stated in paragraph 2.2.3(G) of
the Prospectus, (hereinafter: “The pledged Units” or “The
pledged Securities”) at a minimal price per-unit (hereinafter:
	 

	 	“The Price for Underwriters”);






Therefore, it has been agreed, declared and stipulated between the parties as follows:





	1.	 	Preamble
	 
	 	 	The preamble and the appendixes to this Agreement will constitute an integral part
thereof. Use of plural address in this agreement also means singular address, and
vice-versa.
	 
	 	 	In this Agreement, the following terms will have the meaning that appears next to them. Terms
that are not defined in this agreement and appear in the Prospectus, will have the meaning
that is ascribed to them in the Prospectus.





	 	 	 
	“The Consortium 

Managers”

	 	Poalim I.B.I – Underwriting & Issuances Ltd.
(hereinafter: “Poalim I.B.I”) Altshuller Saham
Management of Underwriting & Investments Ltd. and
Rosario Capital Ltd.
	 
	 	 
	“Authorized Delegates
to accept proposals”

	 	Members of the Stock Exchange












 



3


	 	 	 
	“The Share Issue 

Coordinator”

	 	Poalim I.B.I – Underwriting & Share Issue Ltd.
	 
	 	 
	“The Prospectus”

	 	Means the Prospectus to be published by the
Company in regard to the abovementioned Share
Issue including any amendment to the Prospectus
which will be agreed upon between the Company and
the Underwriters
	 
	 	 
	“The Stock Exchange”

	 	The Tel-Aviv Stock Exchange for Securities Ltd.





2. General



This agreement is based on a Prospectus that the Company shall
publish in regard to the offer of Securities, and in terms of those
amendments to be agreed upon between the Company and the Consortium
Managers.



This Agreement reflects the mutual undertakings between the
Underwriters, except in a case where it is explicitly stated otherwise
and in those amendments which will be agreed upon between the
Underwriters regarding the purchase pledges by the Underwriters as
specified in paragraph 3 henceforth.



The Company hereby undertakes to deliver to the Consortium Managers
immediately following the publication of the Prospectus, 400 copies of
the Prospectus;



3. Rate of the Underwriters Participation



Each individual underwriter participates in ensuring the acquisition of the pledged
Securities according to the following list henceforth:










 



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	Underwriter	 	Number of pledged units
	Poalim I.B.I – Underwriting & Issuances Ltd.
	 	 	3,122	 
	Altshuller Saham Management of Underwriting &
Investments Ltd.
	 	 	3,122	 
	Rosario Capital Ltd.
	 	 	1,600	 
	Shoher Tov Ltd.
	 	 	1,050	 
	P.R. Capital Market Research Ltd.
	 	 	370	 
	Solomon Underwriters Ltd.
	 	 	530	 
	Jerusalem Capital Markets – Underwriting & Share
Issue (1994) Ltd.
	 	 	265	 
	I.A.Z. Investments & Properties Ltd.
	 	 	214	 
	Vered Doroth Underwriting Company (1993) Ltd.
	 	 	160	 
	Total
	 	 	10,433	 







	4.	 	The Obligations of the Underwriting






	 	4.1.	 	The Underwriters hereby agree to purchase, each one as per the rate of his
share as stated in paragraph 3 above, from the Company, all the pledged Securities in
which regard the Company shall announce that no request of purchase has been
submitted up until the time the list of signatures has been closed, i.e. proposals
for their purchase, or if for any reason whatsoever the full price for them was not
paid to the Company until the date set for such in the Prospectus.





Purchasing the pledged Securities, if and as much as may be needed as
stated above, shall be made at the price set for the Underwriters, subsequent to the
deduction of taxes and dues, should there be such.




	 	 	 	To be sure, for calculating the number of units that the Underwriters have to
purchase in terms of the aforementioned, deductions will be made from the pledged
units of all the units for which orders were submitted to the Company within the
framework of a public tender in terms of the Prospectus except for orders of units
for which a pledged order was given as stated in paragraph 2.2.3. (G) of the
Prospectus, and except for units for which pledges by institutes was given.










 



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	4.2.	 	Each individual underwriter shall be accountable to the Company according to
the rate of his participation as stated above and this without any mutual
accountability between the underwriters.
	 
	4.3.	 	For the purpose of calculating the number of Securities that each of the
underwriters has to purchase as per the rate of his aforementioned participation in
paragraph 3 above, deductions shall be made from the total of the pledged Securities,
Securities that the proposals for their purchase were submitted not through the
underwriters or by them, neither through corporations that are controlled by the
underwriters or on their behalf except for orders of units for which a pledged order
was given as stated in paragraph 2.2.3. (G) in the Prospectus, and except for units
for which pledges by institutes was given.
	 
	4.4.	 	Each of the underwriters shall be bound to purchase Securities from the
pledged Securities in a quantity that is equal to the difference:
	 
	 	 	Between: the quantity of Securities that he undertook to participate in
pledging them (as stated in abovementioned paragraph 3) and subsequent to the
adjustment ensuing from upholding the provisions of paragraph 4.3
above;


And between: the quantity of Securities that the proposals for purchasing
them were submitted through him or through a corporation on his behalf or by him or
through a delegate authorized to accept proposals on his behalf as stated in
paragraph 4.7 hereafter and which were granted and their full value was paid.
	 
	4.5.	 	Subject to the aforementioned, if proposals for purchasing Securities were
submitted by whatever Underwriter or by a corporation on his behalf or by him in a
quantity that exceeds the amount of Securities he had to purchase as mentioned above,
Each such surplus balance shall be considered as though the request for its purchase
was submitted by the Underwriters who did not meet the rate of their participation
(each surplus balance shall be considered as though the request for its purchase was
submitted as stated only to the extent that it may be required to complete the amount
of Securities that the other Underwriter is bound to purchase). The policy of
dividing fractions of units, should there be any, will be determined by the
Consortium Managers.
	 
	4.6.	 	“Proxy Corporation” of one of the Underwriters in aforementioned clause 4.5,
means, any corporation that makes part of a group of that Underwriter. Any doubts
regarding the matter of affiliation of a corporation to a group of that Underwriter
as stated above, will be decided by the Consortium Managers and their decision shall
be final.










 



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	4.7.	 	Should proposals be made by an Underwriter, who is not authorized to receive
proposals, to purchase Securities through delegates authorized to receive proposals,
the following provisions shall prevail:






	 	4.7.1.	 	The Underwriter will inform, at the time of submitting the proposals to the
authorized delegate, and receive his approval that such proposals are submitted
by proxy or an Underwriter who makes part of the Prospectus.
	 
	 	4.7.2.	 	The Underwriter will inform in writing the Share Issue Coordinator on the day
of submitting the applications, the matter of submitting the applications
through the authorized delegate, while noting the name of the authorized
delegate and the amount of Securities that were ordered, as mentioned above,
and shall attach to his note to the Coordinator a copy of the order and the
approval from the Authorized Delegate. The note of the Underwriter in terms of
this small paragraph together with copies of the order and the approval shall
be final and binding.
	 
	 	4.7.3.	 	Should the Underwriter inform the Share Issue Coordinator about the
submission of proposals through an Authorized Delegate, as stated in small
paragraph 4.7.2 above, such Securities that are included in the applications
shall be considered as Securities that the proposal for their purchase were
submitted by that Underwriter and subject to that that the applications were
submitted and their full value was paid to the Company in terms of the
Prospectus, where the amount of Securities that are included in the proposals
shall be deducted from the total sum of Securities which that Underwriter has
to purchase in terms of aforementioned paragraph 3. To be sure, under no
circumstances such Securities are counted among the Securities which the
proposals for purchasing them were submitted through another Underwriter or
another Authorized Delegate.






	4.8.	 	The Underwriters or any one of them shall not submit proposals to purchase units
issued in terms of the Prospectus for themselves, unless the Prospectus included a
notice regarding the quantity of units they undertook to order for themselves.
Henceforth is a list of Underwriters who made known their intentions to order for
themselves units within the framework of the public tender:










 



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	Poalim I.B.I – Underwriting & Issuances Ltd.
	 	 	3,122	 







	 	 	The Company undertakes to include those notifications in the Prospectus.
	 
	5.	 	Statement of Competence






	 	5.1.	 	Each of the Underwriters hereby declares to the Company that on the date of
signing this agreement the terms of competence are met according to the Securities
Regulations (Underwriting), 5753-1993, and further states and undertakes that he shall
have such competence until his entire aforesaid obligations are met or until it is
established that he has no obligations and that he shall immediately inform the
Company and the Consortium Managers of any changes as to the truthfulness of his
declaration regarding his competence to act as a Underwriter.
	 
	 	5.2.	 	Each of the individual Underwriters hereby declares that on the date of signing
this agreement he has absolute and unconditional financial ability to fulfill all of
his obligations in terms of this agreement, he further states and undertakes that he
shall have such financial ability, until his entire aforesaid obligations met or until
it is established that he has no such obligations and that he shall immediately inform
the Company and the Consortium Managers of any change as to the truthfulness of his
declaration or as to his ability to meet his aforementioned obligations.
	 
	 	5.3.	 	Should such notice be received as stated in aforementioned small paragraphs 5.1
and 5.2 and/or the Consortium Managers are of the opinion that changes occurred in the
truthfulness of his declaration or as to the ability of the Underwriter to meet his
aforementioned obligations, the Consortium Managers are entitled at their sole
discretion to inform the Underwriter that he is removed from the Underwriters
consortium and replace him with another or others, or to reduce his share, or to take
any other action they deem appropriate for the purpose of ensuring the existence of
full and proper underwriting of the pledged Securities. Should there be an occasion
where the Consortium Managers exercise their aforementioned authority, they shall
notify the Company of such and the Company will inform without delay the Securities
Authority and the Stock Exchange.
	 
	 	 	 	Under the aforementioned circumstances, each of the Underwriters undertakes to sign
on an amendment to the Prospectus, should such notification be required in the
opinion of the










 



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	 	 	 	Securities Authority or that of the Consortium Managers, amendment to Prospectus in
terms of paragraph 25 of the Securities Law 5728-1968.
	 
	 	 	 	Such aforesaid amendment shall not be used as a pretext to release whatever
Underwriter from his obligations in terms of this agreement.






	6.	 	Transfer of funds






	 	6.1.	 	Shortly before the day of the tender, the Share Issue Coordinator shall open
with a banking corporation a trust account (hereinafter: “The Special Account”). The
Special Account will be managed exclusively by the Share Issue Coordinator for and in
the name of the Company, sums will be deposited in it which were paid among other for
the Securities of whom the proposals for their purchase were approved by the Share
Issue Coordinator and by other members of the Stock Exchange according to the terms of
the Prospectus, where the Share Issue Coordinator shall deal with them and act in
terms of the Prospectus.
	 
	 	6.2.	 	The Share Issue Coordinator shall transfer to the Company the monies to be paid
for the Securities of whom proposals in their regard were approved (including the
profits) after deducting the full amount of commissions as specified in paragraph 9
henceforth, within one business day after receiving them.
	 
	 	6.3.	 	Transfer of funds is conditioned as such that simultaneously upon transferring
the aforementioned funds in small paragraph 6.2, the Share Issue Coordinator will
receive for the listing company through which the Securities will be traded in the
Stock Exchange, allocation letters for the Securities that were purchased by the
public.
	 
	 	6.4.	 	Sums of commissions that were deducted by the Share Issue Coordinator will be
transferred to the Underwriters and the Authorized Delegates for receiving the
proposals of those who are entitled to it according to the Prospectus.
	 
	 	6.5.	 	Notwithstanding the aforementioned in small paragraphs 6.2 and 6.4 above and in
terms of this agreement, the Share Issue Coordinator will not transfer all the funds
to the Company and the Underwriters unless the conditions that are determined in the
Stock Exchange guidelines for maintaining minimal dispersal and listing for trading at
the Stock Exchange as described in the Prospectus are met.










 



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	 	6.6.	 	Should the Securities not be listed for trading, the Share Issue Coordinator
will refund those who made the orders, the value of the units that were paid for by
them, if it was paid, together with profits accumulated by it, should there be any,
and by deducting taxes in terms of the law, should they apply.






	7.	 	Realization of the Underwriting Obligations






	 	7.1.	 	Upon the first trading day after the date of the tender, no later than 15:00
Hrs., the Company will inform the Share Issue Coordinator of the total number of
Securities out of the Securities on offer that the Underwriters have to purchase in
terms of the conditions of this agreement.
	 
	 	7.2.	 	Should the Underwriters have to purchase Securities out of the Securities on
offer in terms of the notice mentioned above, the Underwriters will pay the Company
through the Share Issue Coordinator, and according to the conditions of the
Prospectus the value of those Securities they have to purchase in terms of this
agreement, no later than 17:00 Hrs. on the third business day subsequent to the day
of the tender subject to such that the minimal dispersal requirements as well as the
rest of the conditions for being listed for trading at the Stock Exchange as they are
defined in the Prospectus are met.
	 
	 	7.3.	 	Against the receipt of any sum from the aforementioned revenue, the Company
shall transfer and allocate to the Underwriters the Securities they have purchased,
and shall hand them letters of allocation for such.
	 
	 	7.4.	 	The Underwriters shall be entitled to deduct from the revenues obtained from
the Securities that they have to purchase and which are offered to the public, all
the sums of commissions due to them in terms of this agreement, except that the
amounts of the commissions were not deducted at that time in terms of paragraph 6.4
above.
	 
	 	7.5.	 	This agreement shall be considered as an irrevocable proposal on behalf of the
Underwriters for purchasing the pledged Securities of whom they undertook to purchase
as specified in this agreement.






	8.	 	Listing for Trading and Arrangements
	 
	 	 	The Company shall act and do its utmost to make it happen so that the
Securities which are offered in terms of the Prospectus shall be traded at the Stock
Exchange.










 



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	9.	 	Commissions
	 
	 	 	In return for the undertakings and the services of the Consortium Managers and the
Underwriters in terms of this agreement, including services of coordination and Share
Issue, as well as in return for the services of the Authorized Delegates to receive
proposals, the Company will pay through the Share Issue Coordinator, no later then the
first subsequent business day after the day of the tender (subject to paragraph 6 above)
the amounts specified henceforth, from the Special Account:






	 	9.1.	 	To the Underwriters
	 
	 	 	 	Underwriting commission at the rate of 2% from the immediate total revenues of the
pledged units when it is calculated according to the minimal price per-unit. The
commission will be divided between the Underwriters according to their proportional
share in their undertaking as specified in paragraph 3 above, regardless of the
quantity of units which was ordered through them.
	 
	 	9.2.	 	To Institutional Investors
	 
	 	 	 	The Company will pay early undertaking commission to the Institutional Investors at
the rate of 2% from the immediate total revenues for the Securities for whom the
Institutional Investors undertook to submit orders when it is calculated according
to the minimal price per-unit.
	 
	 	9.3.	 	For Delegates Authorized to Receive Proposals
	 
	 	 	 	Distribution commission at the rate of 0.5% received from the immediate, total and
actual revenues for the Securities which will be purchased subsequent to proposals
submitted through them. This commission will also be paid to Institutional Investors
regarding Securities they purchased to fulfill their prior undertaking (therefore,
the Authorized Delegates to receive proposals will not be entitled to Distribution
Commission for the said units purchased by the Institutional Investors to fulfill
their prior undertaking).
	 
	 	9.4.	 	To the Consortium Managers and the Underwriters
	 
	 	 	 	Management and participation commission at the rate of 5.74% from the immediate,
total and actual revenues received for the units offered according to the
Prospectus. This commission will be divided between the Consortium Managers and the
Underwriters at the sole discretion of Poalim I.B.I.










 



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	 	9.5.	 	To the Share Issue Coordinator a coordination commission at the sum of NIS
20,000 and an amount in NIS that is equivalent to US$ 16,000 to Poalim I.B.I as
recovery of expenses for inspecting the Prospectus.
	 
	 	 	 	The abovementioned commissions will be paid in full, also in the instance of
purchasing Securities by the Underwriters in terms of the provisions of this
agreement. Should the Underwriters have to purchase Securities in terms of
provisions of this agreement, the commissions will be paid to each Underwriter after
he purchased the Securities he is bound to purchase in terms of this agreement and
pay their full value.
	 
	 	 	 	For Underwriters and entities who are a “licensed dealer” as termed in the Value
Added Tax Law, the Company will pay the commissions and the sums mentioned above
with the supplement of Value Added Tax (at the rate of 17% or according to an
appropriate authorization that may direct otherwise) against a tax invoice as
required by law.
	 
	 	 	 	The Underwriters and the Authorized Delegates who are permitted to receive
proposals, are allowed to afford their clients discounts from the distribution
commissions to which they are entitled.
	 
	 	 	 	The payments will be made by the Company through the Stock Issuing Coordinator. The
aforementioned constitutes an irrevocable directive from the Company to Stock
Issuing Coordinator.






	10.	 	The Declarations of the Company
	 
	 	 	The Company hereby declares and undertakes towards the Underwriters that:-






	 	10.1.	 	It did carry out all the examinations in order to confirm and verify the
information contained in the Prospectus, that the Prospectus, including any amendment
that may be added to it as stated henceforth, truthfully portrays all the essential
information regarding the Company, the facts, the agreements (in writing and orally),
the permits, the licenses as well as the rest of the details that are mentioned
hereto and that no part whatsoever is omitted form the Prospectus which may be
important to the reasonable investor who considers the purchasing of bona-fide
Securities and it does not include any misleading detail whatsoever as it is defined
in the Securities Law 5728-1968 (hereinafter: “Misleading Detail”).










 



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	 	10.2.	 	The Company shall indemnify the Underwriters or each and every one of them
due to financial liability imposed on him in favor of another person in terms of a
verdict, including a verdict given in a settlement or arbitration verdict that was
approved by Court, on account of the Prospectus had a misleading detail, as well as
for reasonable litigation expenses, including lawyers fees incurred by any of the
Underwriters or that he was charged with such by a Court of Law in the aforementioned
proceedings or in regard to criminal indictment in which the Underwriter was
acquitted or in which he was convicted in a felony that does not require criminal
premeditation or due to an investigation or process conducted against him by a
competent authority to conduct investigation or process and which resulted without
the submission of an indictment against him and without having imposed on him a
financial liability as an alternative to a criminal process (as defined in the
Companies Law, 5759-1999) or that it ended without the submission of an indictment
against him but in imposing financial liability instead of a criminal process in a
felony that does not require criminal premeditation, where all resulted from the
Prospectus having a misleading detail.
	 
	 	 	 	Each one of the Underwriters will be entitled to demand from the Company in
writing that it shall conduct in his name any negotiations or defense against
such aforementioned prosecution. Should the Company not meet such aforementioned
demand, that Underwriter could settle with the claimant on any amount he deems
right and the Company will be obliged to indemnify him for the amount of
settlement or for any reasonable amount he has spent in the course of attending
to the claim and in direct relations to it except that the Company was given a
notice in writing 7 days in advance concerning the intention to settle as such
and that the Company did not take upon itself to manage the claim and that the
settlement was approved as a verdict in a Court of Law.
	 
	 	 	 	Notwithstanding the aforementioned, the amount of indemnity will not exceed in
any event the total of the gross amount enlisted (attached to the Consumer Price
Index commencing at the time this agreement is signed) except that no sum will be
paid for the indemnity if paying it will prevent the Company from the ability to
meet its existing and future commitments when the time to meet them has come, and
it shall not be paid if it was not proven that the Underwriter believed in good
faith that the Prospectus does not contain a misleading detail. Moreover, no
indemnity will be given for a deed the Underwriter carried out intentionally or
recklessly.










 



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	 	 	 	The obligation of the aforementioned indemnity will not apply against any
Underwriter whatsoever in regard to any sum whatsoever for which he will be
charged due to the inclusion of a misleading detail in the Prospectus or because
of the absence of a detail that may be important to the reasonable investor who
is considering the purchase of the units offered according to the Prospectus,
which was based on information given to the Company by that Underwriter for using
such information for the purpose of preparing the Prospectus.
	 
	 	 	 	Upon the delivery of any claim and/or demand for payment, as stated above, to
whatever Underwriter, such Underwriter will immediately inform the Company and
its Consortium Managers.
	 
	 	10.3.	 	Without detracting from the generality of the declarations and obligations of
the Company, as specified in paragraph 10 herewith, the Company will deliver to the
Underwriters simultaneously upon signing this agreement the following documents:






	 	10.3.1.	 	Opinion by the Share Issue lawyers.

	 
	 	10.3.2.	 	Affirmation from the auditor of the Company.
	 
	 	10.3.3.	 	Signed affirmation by the Chairman of the Board of Directors of the
Company, the CEO of the Company and its Chief Financial Officer.






	11.	 	Obligations of Additional Disclosures
	 
	 	 	From the date this agreement is signed and up until the date of payment for the Securities
offered in terms of the Prospectus:






	 	11.1.	 	The Company shall allow the Consortium Managers to study at their request, on
an ongoing basis all the protocols of its general meetings, its Board meetings and
the Board Committees (including the Control Committee) as well as in any essential
agreement (or a draft of such agreement prior to signing it) where the Company is a
party to it. The Company undertakes to draw the Consortium Managers attention to the
signing of any essential agreement immediately upon signing it and in regard to
conducting any negotiations for signing such essential agreement.
	 
	 	11.2.	 	The Company will deliver to the Consortium Managers in writing any
information that the Company is required to report to the Securities Authority
(including report in terms of










 



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	 	 	 	Chapters D’ and F’ of the Law), 5744-1984, as well as all the reports, which the
Company is required to report to the Stock Exchange, at its request, and shall
fulfill its obligations for providing reports to the Securities Authority and the
Stock Exchange as mentioned above.
	 
	 	 	 	The Company will inform the Consortium Managers without delay about any change or
the development of any essential tendency for the worst in the financial reports of
the Company or in the method of presenting their data.
	 
	 	11.3.	 	If subsequent to a disclosure in terms of paragraphs 11.2 and 11.3 the
Consortium Managers decide to demand amendment to the Prospectus or a modified
Prospectus, the parties will immediately take all the necessary measures to assuage
the Consortium Managers, in order to execute the modification as quickly as possible,
including the petitioning of the Securities Authority in terms of paragraph 25 and/or
25A of the Securities Law.
	 
	 	11.4.	 	Upon the publication of whatever financial report by the Company, such report
will be attached to the Prospectus, without delay, by means of Prospectus amendment
or modified Prospectus in a manner acceptable to the Consortium Managers.






	12.	 	Commencement of Obligations by the Underwriters 
	 
	 	 	The obligations of the underwriters in terms of this agreement shall commence immediately
(but not before) obtaining the permit by the Securities Authority to publish the
Prospectus in terms of provisions of paragraph 21 of the Securities Law. The Company
undertakes, no later then one business day after the day the Prospectus is published, to
advertise in two newspapers a notice as stated in paragraph 23 (C)(2) of the
abovementioned law.
	 
	13.	 	Additional Authorizations
	 
	 	 	The Company will provide the Consortium Managers within 2 business days following the date
of the Prospectus a copy from the Stock Issuing lawyers that the Stock Exchange approval
and the Securities Authority permit were obtained for publishing the Prospectus and to
carry out the issue of stocks according to it and that a legally signed Prospectus by the
Company and its Directors were indeed reported to MAGNA (Electronic Proper Disclosure),
Distribution Site of Israel Securities Authority.










 



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	14.	 	Releasing an Underwriter from his Obligations
	 
	 	 	Notwithstanding the aforementioned in this agreement, should it be found that the
Prospectus contains a misleading detail whatsoever or that the Prospectus is lacking an
important detail for the reasonable investor who considers the purchasing of Securities
according to the Prospectus, or in an instance where the Securities Authority shall give
instructions to the Company in terms of paragraph 25(A) and/or 25A(B) of the Securities
Law, to publish amendment to the Prospectus or to publish an amended Prospectus, or in a
case where the Company asks (without first obtaining the approval of the Consortium
Managers) to prepared Prospectus amendment in terms of paragraph 25A(A) of the
aforementioned Law, the Underwriters or any of them, will be allowed, by giving notice to
the Company within 2 business days from the day they found out about one of the instances
listed above as the case may be, but no later then 12 hours before the list of signatures,
to be released from all their obligations towards the Company in terms of the Underwriting
Agreement. Hence, if the misleading detail or the missing important detail in the
aforementioned Prospectus was not known to that Underwriter at the time of signing the
Underwriting Agreement, or if the instruction was given or the proposal was submitted due
to something that was not known to that Underwriter at the time of signing the Underwriting
Agreement, which if he would have reasonably known, he would not have associated with the
Company and the offering entity in the Underwriting Agreement, or that he would not have
associated with this agreement under those terms.
	 
	 	 	The Company will inform the Consortium Managers on the same day in relation to instructions
issued by the Securities Authority to publish amendment to the Prospectus as aforementioned
or about the request by the Company to publish such amended Prospectus.
	 
	 	 	If one or more of the Underwriters shall carry out his aforementioned right and release
himself of his obligations in terms of such Underwriting Agreement, the Company will
request the Securities Authority, demanding amendment to the Prospectus, in terms of the
provisions of paragraph 25A(A) of the Securities Law. Such demand and subsequent amendment
to the Prospectus will not by itself form a pretext to release any Underwriter whatsoever
from his obligations in terms of this agreement.
	 
	 	 	If anyone from among the Consortium Managers shall act in terms of this provision and
release himself from his obligations as such without another Consortium Manager having
taken upon himself the obligation of the former, the Underwriting Agreement shall be as
well cancelled with the rest of the Underwriters, and the Company will request the
Securities Authority demanding to amend the Prospectus or that it shall cancel the Share
Issue, the whole lot at its discretion.










 



16








	 	 	In a case where the Company chose not to cancel the Share Issue and to implement it without
the obligations of underwriting, it will request the Securities Authority demanding to
publish amended Prospectus that will not include the Underwriting Agreement; in addition,
it will not include the signatures of the Underwriters. If for whatever reason no such
amended Prospectus is published, the Share Issue shall be cancelled.










 



17








	15.	 	Circumstance for Canceling the Issue of Shares
	 
	 	 	Notwithstanding the aforementioned in this agreement, it is agreed that the Consortium
Managers will be permitted to cancel at their sole discretion all the obligations of the
Underwriters according to the Underwriting Agreement, this shall take place later then 12
hours prior to the opening of the signatures list in the tender to the public. Therefore,
if in their opinion a vital change occurred in the national, political, security or
economical state which may cause a fundamental change for the worst in the Israeli capital
markets or in the major capital markets abroad.
	 
	 	 	In such an instance this Agreement will be also canceled with the rest of the Underwriters,
and the Company will request the Securities Authority demanding amendment to the Prospectus
or the cancellation of the issue of shares, the whole lot at its discretion.
	 
	 	 	Notice concerning the cancellation of obligations by the Underwriters and canceling the
Underwriting Agreement as such will be given by the signatures of the Consortium Managers,
and shall be considered as being delivered to the Company at the time it was handed over at
the registered address of the Company or at the offices of its lawyers who are attending to
the issue of shares.
	 
	 	 	In an instance where the Company chose not to cancel the issues of shares it shall request
the Securities Authority demanding to publish an amended Prospectus which will not include
the Underwriting Agreement, neither will it include the signatures of the Underwriters. If
for whatever reason no such amended Prospectus is published, the issues of shares will be
cancelled.
	 
	16.	 	Actions to be taken in case the issuing of shares is cancelled
	 
	 	 	Should such issuing of shares as stated in paragraphs 14 or 15 above be cancelled the
Company will announce it in an immediate report, and shall publish a notice in this regard,
on the same day as much as it may be possible, in one newspaper, and in the following day
in two mass circulated newspapers in Israel in the Hebrew language. The Company shall
attend to distribute the immediate report among all the members of the Stock Exchange, the
Securities Authority and the Authorized Delegates who are allowed to receive proposals in
terms of this agreement on the day the Agreement is cancelled.
	 
	 	 	It is hereby clarified that if the issuing of shares is cancelled under the circumstances
specified in paragraphs 14 or 15 as mentioned above, then the Consortium Managers and/or
the Underwriters and each one of them will not bear responsibility towards the Company and
the Company will bear










 



18








	 	 	no responsibility towards the Underwriters and/or the Consortium Managers in regard to any
damage that may be caused as a result and/or in regard with the above mentioned
cancellation and/or for any expense that was spent in the course and/or in regard to
preparing the drafts of the Prospectus and the Prospectus and/or in the course of
negotiations towards signing this agreement.
	 
	17.	 	Authorization to the Consortium Managers






	 	17.1.	 	The Underwriters hereby authorize the Consortium Managers to postpone in
their name, dates that are set in the Prospectus including, but not only, the date of
the tender and/or to cancel this agreement in their names at their discretion.
	 
	 	17.2.	 	The Underwriters hereby authorize the Consortium Managers to agree in their
name and to sign in their name on any amendment to the final draft of the Prospectus
and any amendment to this agreement.
	 
	 	17.3.	 	The Underwriters hereby authorize the Consortium Managers to sign in their
name on any amendment to the Prospectus, also after it was published if in their
opinion there is a legal, commercial or other necessity to amend it.
	 
	 	17.4.	 	It is hereby clarified that the Consortium Managers will bear no
responsibility towards the Company and/or the Underwriters for any damage caused
and/or may be caused as a result and/or in regard to the postponement or the
cancellation or the amendment that are mentioned above and/or for any expense they
incurred in the course of and/or in regard to the preparation of the drafts of the
Prospectus and the Prospectus and/or during the negotiations towards the signing of
this agreement.






	18.	 	Stamp Tax
	 
	 	 	Payment of Stamp Tax for this Agreement, as much as it may apply, will apply to the
Company.










 



19








	19.	 	All-inclusive Agreement
	 
	 	 	This Agreement contains the entire agreements between the parties and replaces any
agreement, accord, presentation or previous document between the parties that pertains to
anything that is stated in it. Moreover, changes to this Agreement will not be valid
unless they were done in writing and signed by the parties or their representatives.
	 
	20.	 	Authorization to MAGNA (Electronic Proper Disclosure) Distribution Site of Israel
Securities Authority
	 
	 	 	The Underwriters authorize by signing this agreement the electronic authorized signer of
the Company to report in their name to MAGNA (Electronic Proper Disclosure) Distribution
Site of Israel Securities Authority about their association in this agreement and of their
signature on it as well as about their signature on the Prospectus.





As proof hereof the parties:




	 	 	 
	/s/ Erez Golan, CEO      /s/ Eyal Kolka, CFO
	 	 
	 

TopSpin Medical, Inc.

	 	 












 




20


	 	 	 
	/s/ Erez Balaga, Deputy General Manager
	 	 
	 

Poalim I.B.I Underwriting & Issuances Ltd.

	 	 
	 
	 	 
	/s/ Meir Chen, CEO
	 	 
	 

Altshuller Saham Management of Underwriting & Investments Ltd.

	 	 
	 
	 	 
	/s/ Reuven Abelgon, CEO
	 	 
	 

Rosario Capital Ltd.

	 	 
	 
	 	 
	/s/ Arie Weiss, CEO
	 	 
	 

Shoher Tov Ltd.

	 	 
	 
	 	 
	/s/ Edward Claire, CEO
	 	 
	 

P.R. Capital Markets Research Ltd.

	 	 
	 
	 	 
	/s/ Raz Ron, Director
	 	 
	 

Solomon Underwriters Ltd.

	 	 
	 
	 	 
	/s/ Vered Meir, CEO
	 	 
	 

Jerusalem Capital Markets – Underwriting & Share Issue (1994) Ltd.

	 	 
	 
	 	 
	/s/ Yehuda Tzadik, CEO
	 	 
	 

I.A.Z. Investments & Properties Ltd.

	 	 
	 
	 	 
	/s/ Vered Meir, CEO
	 	 
	 

Vered Doroth Underwriting Company (1993) Ltd.